Geagley v. City of Bedford, 46571.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSMITH
Citation16 N.W.2d 252,235 Iowa 555
Docket NumberNo. 46571.,46571.
Decision Date13 January 1945

235 Iowa 555
16 N.W.2d 252


No. 46571.

Supreme Court of Iowa.

Nov. 14, 1944.
Rehearing Denied Jan. 13, 1945.

Appeal from District Court, Taylor County; Homer A. Fuller, Judge.

Action for damages for personal injury caused by fall upon icy sidewalk. Verdict and judgment for plaintiff. Defendant city appeals.


[16 N.W.2d 254]

O. J. Kirketeg, of Bedford, for appellant.

M. R. Brant, of Bedford, for appellee.

SMITH, Justice.

On January 4, 1943, plaintiff-appellee, 73 years old and long a resident of defendant city, fell on an icy sidewalk near the hotel operated by her for 25 years. She thereby suffered personal injury for which she claims the city is liable in damages.

She alleges that for a period of six weeks preceding the accident the city had allowed snow to accumulate as it fell from time to time; that it failed to remove dirt along the north side of the walk which stopped the drainage of water therefrom; and that a process of thawing and melting took place causing ice to form at that point and to become uneven with bumps and ridges and very dangerous to walk on.

She alleges both actual and constructive notice to the city of such dangerous condition and that she fell and suffered the injury complained of without negligence on her part. Defendant's answer was in effect a general denial. Other preliminary proceedings will be referred to as we discuss the various errors assigned and argued.

The hotel operated by plaintiff is on the south side of Jefferson Street in said city with an alley running north and south along the east side intersecting said street at the northeast corner of the hotel premises. The sidewalk extending from Court Street to the east, thence west along the south side of Jefferson Street, crosses this alley near the hotel. She and her witness say the accident happened five or six feet east of the alley. Witnesses for defendant-appellant testify it was west of the alley and alongside or on plaintiff's premises.

Plaintiff and her witnesses testify that the snow and ice had collected there during six weeks preceding the accident, that ‘it melted and run down and kept freezing,’ that it was ‘humpy, rough,’ ‘rough and uneven,’ ‘it was tracked down there, melting and tracked down and formed ice and kept getting thicker all the time and rougher.’

But this testimony was by no means uncontradicted. A formidable array of witnesses denied it with varying degrees of definiteness. Clearly the condition of the walk was a question of fact.

Plaintiff testifies she was entirely familiar with the condition of the walk at that point, that she crossed it numerous times each day, though she didn't know it was so rough until she fell on it. She says she was ‘walking very careful,’ ‘I took rather short steps'; she says she slid on ‘this humped up heavy ice.’ The evidence shows there is no other direct route from plaintiff's hotel to the business section of town.

The witnesses on both sides are quite in agreement that there had been a sleet storm the day before and it was more or less slippery in other places in town.

Other matters in the record and further details of the evidence will be developed as we take up the contentions urged by appellant.

I. On March 30 an entry was made in the trial court's calendar that both parties, ‘in open court waive right to trial by Jury and consent this cause be tried to the Court.’ Later the calendar shows: ‘Above record expunged by the Court this 1st day of April, 1943, on its own motion. Defendant excepts.’

The record itself makes no explanation of these entries. The respective attorneys in their briefs disagree somewhat as to the facts. The effect of the action of the trial court was to allow a jury trial and no abuse of discretion is shown. We think there was no error.

II. Appellant city, before answering, filed a motion asking that plaintiff be required to bring in ‘the owner of the property whose duty it is to maintain the sidewalk on which the alleged injury was sustained.’ The motion alleged that ‘said petition shows that if there was any negligence in the maintenance of this sidewalk, the owner of the property was guilty’ and would be liable over for any judgment plaintiff might recover. Appellant assigns as error the denial of this motion. It cites sections 10972 and 10981, Iowa Code 1939, in support of this assignment.

Section 10972 is on its face permissive: ‘Any person may be made a defendant who has or claims an interest * * * or who is a necessary party to a complete determination or settlement of the question involved in the action * * *.’ (Italics ours.)

Section 10981 is in part permissive and in part mandatory: ‘The court may determine

[16 N.W.2d 255]

any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, it must order them to be brought in.’ (Italics ours.)

This mandatory provision cannot be held to apply here. The property owner is in no sense a necessary party to this controversy. The liability of appellant city to appellee can be determined without reference to any possible liability over of the adjacent property owner to the city or liability to appellee. We make no pronouncement as to the status of the property owner.

In Searles v. Northwestern Mut. Life Ins. Co., 148 Iowa 65 at pages 68, 69,126 N.W. 801, at page 803, 29 L.R.A.,N.S., 405, we said: ‘The rule as to necessary parties, requiring that all parties whose interests are involved in the matters to be adjudicated must be brought in, has application only in proceedings in equity where the plaintiff is asking some relief to which he is not entitled, unless he can make the decree binding on those who are to be necessarily affected by it.’

We do not understand appellant to contend that appellee's right of recovery against the city depends upon her ability to establish liability against the lot owner.

In Updegraff v. City of Ottumwa, 210 Iowa 382, 226 N.W. 928, 929, we say that while Section 5945, Iowa Code 1927 (same as in Code 1939), imposes upon the municipality the duty of maintaining streets and sidewalks in a reasonably safe condition, it does not ‘relieve the property owners or others from the duty not to obstruct or place dangerous instrumentalities thereon so as to endanger the safety of the public rightfully using the same nor from liability for damage occasioned thereby.’

That was a ‘down-spout’ case. The city and property owner were both named as defendants but there is no suggestion that the latter was a necessary party to recovery against the city.

Our conclusion, without expressing any opinion as to his liability or non-liability, is that the property owner was not a necessary party.

III. Appellant assigns error upon the action of the trial court in sending the jury to view the premises at the conclusion of plaintiff's evidence in chief. Objection was made ‘to them viewing the premises at this time.’ Counsel for appellant added to the objection: ‘That the evidence, if later on the defendant introduces evidence, that at that time they ought to see the premises.’

The jury did again view the premises at the close of all the evidence and without objection. We are unable to see any error prejudicial or otherwise. No authority is cited by appellant. The court is vested with discretion in the matter, Section 11496, Code of Iowa 1939, and we are not prepared to hold he abused it.

IV. It is contended the court should have directed a verdict for defendant. Various grounds or reasons are urged and separately argued. We can dispose of all under two divisions.

First, appellant claims there was no evidence of any negligence of defendant causing the injury complained of. The theory of appellant is that whatever icy condition existed was due to a general sleet storm which raged for a day or two before the accident, and not to an accumulation of snow and ice over a long period of time.

It is not necessary to review at length the testimony of various witnesses. The evidence is in sharp conflict both as to the condition of the walk and as to the length of time during which the condition developed. Even the location of the accident is in dispute.

We have already summarized the evidence produced on behalf of plaintiff-appellee. If she and her witnesses are to be believed there was an accumulation of ice and snow on the walk over a period of six weeks; there had been thawing and freezing; the situation had been aggravated by the fact that the earth of the parking along the outer edge of the walk, being higher than the walk, obstructed drainage so that melted snow and ice could not escape; the surface had become humpy, rough and uneven.

While this testimony was contradicted by numerous witnesses, it was for the jury to weigh all the evidence and determine the fact.

We have held that such conditions, existing over a period of time, constitute evidence of negligence for which the municipality is liable.

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