Franks v. Sioux City

• Decision Date: 11 February 1941
• Docket Number: 45390.
• Citation: 296 N.W. 224,229 Iowa 1097
• Parties: FRANKS v. SIOUX CITY.
• Court: Iowa Supreme Court

296 N.W. 224

229 Iowa 1097

FRANKS v. SIOUX CITY.

No. 45390.

Supreme Court of Iowa.

February 11, 1941

Appeal from District Court, Woodbury County; D. C. Browning, Judge.

Action at law for damages resulting from injuries received from a fall on an icy sidewalk, the ice being caused by acts of employees of defendant city. Defense was a general denial and pleas that plaintiff was guilty of contributory negligence and that defendant's employees were engaged in a governmental function. A verdict was returned for plaintiff. Judgment was entered thereon. Defendant appeals.

Affirmed.

V. O DeWitt and Ralph W. Crary, both of Sioux City, for appellant.

Robert J. O'Connor and Fred H. Free, both of Sioux City, for appellee.

MILLER, Justice.

Plaintiff's petition asserts that on February 8, 1939, between the hours of 1 and 3 A. M. defendant's employees flooded a skating pond in Sioux City in such a negligent manner that a large amount of water escaped onto a sidewalk causing ice to form upon it; on the afternoon of the same day about 3 P. M. plaintiff, while walking on the sidewalk at said place slipped and fell receiving injuries; defendant was negligent in creating such icy condition and in failing to remedy the situation; plaintiff was free from contributory negligence. Plaintiff demanded judgment for damages resulting from his injuries.

Defendant's answer asserted a general denial and also that its employees were engaged in a governmental function and that no liability could result therefrom. Defendant also asserted that plaintiff's injuries were the result of contributory negligence of plaintiff.

The defendant made a motion for a directed verdict asserting nine grounds. Only three are now relied upon: (1) the defendant was engaged in a governmental function in flooding the skating rink and is not liable for damages caused by negligence of its employees while so engaged; (2) the evidence affirmatively shows that plaintiff was guilty of contributory negligence; (3) the defendant had no notice either actual or constructive, of the ice on the sidewalk. The motion was overruled and the cause was submitted to a jury which returned a verdict for plaintiff in the sum of $1,500. Judgment was entered thereon and the defendant appeals.

I.

Appellant's first assignment of error asserts that the court erred in failing to direct a verdict in its favor for the reason that the injury to appellee was the result of a governmental function engaged in by appellant. We find no merit in this contention.

The defect in appellant's contention lies in the fact that it only concerns half of the problem. The petition asserts that the city was negligent in two respects, (1) in flooding a sidewalk while engaged in flooding a skating rink and (2) in failing to remedy the icy condition of the sidewalk. Were we to hold with appellant, that the flooding of the skating rink was the performance of a governmental function so that it would not be liable for negligence on the part of its employees while so engaged, that does not obviate the liability which would result from negligence in failing to remedy the icy condition of the sidewalk. There were two neglects of duty asserted. If appellant is to be exonerated from the first because it arose out of the performance of a governmental function, we still have the second one to consider. Fitzgerald v. Town of Sharon, 143 Iowa 730, 121 N.W. 523; Miller Groc. Co. v. City of Des Moines, 195 Iowa 1310, 192 N.W. 306, 28 A.L.R. 815.

Section 5945 of the Code 1939 imposes upon the appellant the duty to keep streets open, in repair and free from nuisances and Section 5950 specifically authorizes appellant to remove ice from its sidewalks. This court has repeatedly held that a city is liable for damages from an injury caused by ice upon a sidewalk after knowledge thereof by the proper officers of the city and sufficient opportunity to remove the same. Burns v. Waterloo, 187 Iowa 922, 173 N.W. 16; Allen v. Ft. Dodge, 183 Iowa 818, 167 N.W. 577; Rose v. Ft. Dodge, 180 Iowa 331, 155 N.W. 170; Hodges v. Waterloo, 109 Iowa 444, 80 N.W. 523, are illustrative of the rule.

We do not undertake to discuss or decide the issue presented by appellant's contention that, while flooding a skating rink, its employees were engaged in a governmental function, because, even were we to hold with appellant on that issue, that would not entitle appellant to a directed verdict in its favor. There still remains the question whether appellant should have remedied the icy condition of the sidewalk. Negligence in this regard is actionable.

II.

Appellant's second assignment of error asserts that the court erred in not directing a verdict in its favor because the evidence shows that appellee knew and appreciated the danger and knew or should have known that it was imprudent for him to pass over the sidewalk at the place where he fell when another safe and equally convenient way was open to him. We find no merit in this contention.

Appellee testified on direct examination as follows:

" I had on an overcoat and rubber galoshes. It was an awful cold day. As I was coming along the sidewalk I came to this ice and I slowed right up and stopped and I kind of looked that over a little; I thought I could get across all right; so I started across; put my foot down on it; it was froze good and solid; I took a step and about the third step I took my feet went out from under me. * * *

As I approached that ice on the sidewalk I stopped. I saw there was a lot of ice on the sidewalk and out on the parking and out in the street and up in the people's yard. It formed a solid sheet of ice from the gutter across the sidewalk into the yard. I should judge the ice extended about eight or ten feet along the sidewalk. * * * I put one foot forward on the ice first and my galosh seemed to hold. I took one step and tried my footing. Then I took another step. About the third step I took, my feet both went out from under me. Because I was wearing galoshes, I believed I could get across that ice safely before I started."

Appellee testified on cross-examination as follows: " As I came to the intersection of Riverside Boulevard and La Plante I observed the ice upon the sidewalk, and before starting to go over it I stopped and looked at it. I knew it was ice and knew it was slippery. It appeared to be a little higher in the center. It was smooth and then it run off kind of like it run out and froze and then run out a little more. It was in a circular formation. There was nothing that would have prevented me from walking around this ice and over the lawn. I knew that walking across might be attended with some danger of falling, but didn't think I was going to fall. I tried to walk very carefully. I knew it was slippery and smooth. I could have walked over the lawn and around this ice. I didn't think it was dangerous, I thought I could go across. It did not occur to me at that time that it might be imprudent to walk over this ice."

Appellant relies upon the case of Gibson v. City of Denison, 153 Iowa 320, 322, 323, 133 N.W. 712, 713, 38 L.R.A.,N.S 644. In that case, the plaintiff fell while using a defective board sidewalk. He testified in part as follows: " This sidewalk jiggled up and down, and a sidewalk that jiggles up and down is because the stringers are weak. I did not consider that kind of a walk safe any place. I did not consider it in a safe condition, whether in the center or on the side of it; but it is safer in the center than in any other place. In addition to this, the boards were loose, and this I knew before, by the way they moved under my feet, that they were not solid. I knew that before I went on there that day, but I went all the same. Yes; the boards were...