Gates v. City of Des Moines
| Decision Date | 14 June 1949 |
| Docket Number | 47451. |
| Citation | 38 N.W.2d 96,240 Iowa 775 |
| Parties | GATES v. CITY OF DES MOINES. |
| Court | Iowa Supreme Court |
Frank B. Hallagan, S. L. Harvey and Frank D Bianco, all of Des Moines, for appellant.
H H. Sawyer and Harold Leener, both of Des Moines, for appellee.
Plaintiff sought in an action at law to recover damages for personal injuries resulting from a fall on a sidewalk within the defendant city. Upon trial the jury returned a verdict in favor of the plaintiff and judgment was thereafter entered against the city. Respective motions in arrest of judgment judgment notwithstanding the verdict and for new trial were thereafter submitted and overruled. The defendant city has appealed from the judgment entered against it.
The appellee's injuries were received about 12:30 in the afternoon of March 4, 1948. She fell on the sidewalk on the south side of Franklin Ave., between Sixth and Seventh Streets, which fall resulted in the breaking of both bones of her left ankle. Appellee testified in substance that as she came along this walk she noticed it was icy and very rough--icy and bumpy all along, that she stepped on a bump lost her balance, tried to catch herself, then whirled around and fell. She also stated that at the time of the accident she didn't know it was a brick walk because it was covered with snow, that she was walking slowly along the center of it because it was slick and that she noticed more than one bump on the walk.
A witness for the appellee, a police officer, testified that he did not notice the walk being rough or uneven but that it was smooth. He did state, however, that he nearly fell as he was bringing the ambulance stretcher to where the appellee lay. A further witness for the appellee testified that he used this walk almost daily; that there was a fairly heavy snow on the night of February 29th; that there was a footpath perhaps 16 inches wide beaten down along this particular walk. He stated this condition continued for a couple of days, that a narrow path then was shoveled approximately along the beaten line where people walked and that until March 4th there were big pieces of snow along the walk which after they melted became ice lumps and made it rather 'cobbled in texture'. He further stated there was no material change in the condition of the walk concerning which he testified and its condition on the day of the accident. On cross-examination he stated the walk had not been entirely cleaned but that the snow may have melted some.
The occupant of the house adjacent to where the accident occurred testified, as a witness on behalf of the appellant, that following the snow of February 29th and the morning of March 1st there were ten or eleven inches of snow on the ground; that three or four inches more fell the night of March 1st and that he first shoveled the walk on March 2nd when he made a path about sixteen or eighteen inches wide. He further testified that on the morning of the 3rd he scooped the full width of the sidewalk and piled the snow off to the north on the parking; that on the morning of the 4th there was approximately one-eighth of an inch of snow on the sidewalk and he went out and swept it off; that it was as clean as it could be considering the brick construction. He further testified that it was warm enough on the 3rd to melt the snow that had fallen on the night of the 2nd; that it left the brick clean of snow, not perfectly clean to the brick, but down smooth and very close and that the sun did not reach and thaw that part where the shadow from the north side of the house was over the walk. He further stated that there was slick ice where the snow had melted a little and run down and frozen on the sidewalk from the time he was out there that morning until the accident happened. His testimony is to the effect that the sidewalk was perfectly clean at the time and at the spot where the appellee fell. There is other testimony of a somewhat similar nature presented by other witnesses on behalf of the appellant.
Among the exhibits introduced was a meteorological summary of the weather conditions in Des Moines as shown by a weather bureau report. This discloses that the temperature on March 4th from 1:00 A.M. until 1:00 P.M. varied from 18 degrees above zero at 1:00 A.M. to a low of 13 degrees above zero at 7:00 A.M. and to a high of 21 degrees at 12:00 noon and at 1:00 P.M. of that day.
I. On March 10, 1948, pursuant to the provisions of Section 614.1, par. 1, 1946 Code, I.C.A., there was served on the city of Des Moines a notice which stated that on March 4, 1948 Vina Gates sustained injuries as the result of a fall on the sidewalk at or about '1825 Eighth Street, Des Moines, Iowa'. The petition in the appellee's action was filed on March 31, 1948. It was therein stated that the place of the accident was on the south side of Franklin Avenue between Sixth and Seventh Streets.
It is the contention of the appellant that the trial court committed error in not sustaining the appellant's pleaded defense of estoppel in that the notice of claim of injury failed to comply with the statutes of limitation to which reference has heretofore been made.
The statute in question provides that actions for injuries from defects in roads or streets may be brought within three months, 'unless written notice specifying the time, place, and circumstances of the injury shall have been served upon the * * * municipal corporation to be charged within sixty days from the happening of the injury.'
It is claimed, without denial, that the notice served on March 10 1948 did not correctly state the place of the accident. It is the appellant's contention that relying on the notice served it was deceived, misled and placed at a disadvantage in the preparation of its defense and therefore materially prejudiced by the defective notice. The appellant pleaded that by reason of the facts stated the appellee is estopped from claiming any cause of action against the appellant. The petition filed in the action, which is here before us for review, did properly set forth the time and place of the accident. We see no merit in the appellant's complaint. The petition in this case was filed within three months after the injuries were received, in fact, it was filed within 27 days. Even if the officials of the appellant might have been temporarily misinformed as to this particular accident they were sufficiently and timely advised as to the exact facts within the statutory period. A...
To continue reading
Request your trial