Fosselman v. City of Dubuque, No. 40488.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: EVANS
• Citation: 233 N.W. 491,211 Iowa 1213
• Parties: FOSSELMAN v. CITY OF DUBUQUE.
• Docket Number: No. 40488.
• Decision Date: 09 December 1930

211 Iowa 1213
233 N.W. 491

FOSSELMAN
v.
CITY OF DUBUQUE.

No. 40488.

Supreme Court of Iowa.

Dec. 9, 1930.

Appeal from District Court, Dubuque County; P. J. Nelson, Judge.

Action at law for damages for personal injuries sustained upon one of the sidewalks of defendant, resulting, as alleged, from the negligence of the defendant in permitting the accumulation and artificial distribution of ice upon such sidewalk. The answer was a general denial and a plea of plaintiff's contributory negligence. Upon the trial there was a verdict and judgment for the plaintiff, from which the defendant has appealed.

Affirmed.

[233 N.W. 491]

M. H. Czizek, of Dubuque, for appellant.

Frantzen, Gilloon & Glenn, of Dubuque, for appellee.

EVANS, J.

On January 20, 1927, the plaintiff slipped and fell upon an icy sidewalk on the north side of Fifth street in the defendant city. The particular place of the accident is known as 45 West Fifth street. No. 45 consists of a building extending east and west along the sidewalk in question. At its west end it abuts upon a north-south alley, which also intersects the sidewalk. This building has an eave trough, which conducts water from its roof to the west end and deposits it on the sidewalk at the alley intersection. Close to the west end of the building is an entrance thereto, opening to the south upon Fifth street. Two stone steps lead from the sidewalk to the doorsill. The place of accident, according to plaintiff, was at the base of the lower step and upon the sidewalk. It is the claim of the defendant that the accident happened on the lower step. The plaintiff was familiar with the conditions of the sidewalk at this point and had been familiar therewith for several days. He passed over the same daily into an office in the building referred to. He was severely injured. At the close of the evidence the defendant moved for a directed verdict on the ground that the plaintiff had failed, as a matter of law, to prove freedom from contributory negligence. His motion was overruled. Error is assigned here upon such ruling; and likewise error is assigned upon certain instructions.

[1][2][3][4][5] I. The burden of the argument submitted on behalf of the defendant is that the plaintiff failed to prove freedom from contributory negligence. It appears that he knew of the icy condition. He testified that he had passed over it daily and had done so carefully, and that he was moving carefully at the time of the accident. The general point of argument for appellant is that the plaintiff

[233 N.W. 492]

did not prove any affirmative fact to show that he was free from contributory negligence. The point thus made by appellant is not tenable. The plaintiff necessarily has the burden of proving the circumstances of the accident. The question of contributory negligence must be determined from the facts and circumstances attending the accident. Nor is the plaintiff bound to go beyond them in his proof. If these facts and circumstances failed to disclose contributory negligence, then the plaintiff is deemed to have proved his freedom from contributory negligence. The facts and circumstances may be such as to disclose contributory negligence as a matter of law. If so, it becomes the duty of...