Geer v. City of Des Moines
| Decision Date | 20 May 1918 |
| Docket Number | 31957 |
| Parties | MRS. B. M. GEER, Appellee, v. CITY OF DES MOINES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--C. A. DUDLEY, Judge.
ACTION at law to recover damages for personal injury. Verdict and judgment for plaintiff. Defendant appeals.
Affirmed.
H. W Byers, Guy A. Miller, and Paul Hewitt, for appellant.
Parker & Riley, for appellee.
The city of Des Moines has constructed and maintains a cement sidewalk on the east side of West Eighteenth Street between College Avenue on the north and Clark Street on the south. This walk, the plaintiff alleges, was by the plaintiff negligently permitted to become and remain out of repair, in such manner that one section or block of the cement was lifted or raised several inches above the adjoining block or section, creating a defect or obstruction over which a person using the walk was liable to trip and stumble or fall. It is further alleged that this condition had continued a year or more, and had been expressly called to the attention of the city officers; and that plaintiff, while lawfully using the walk, and in the exercise of due care for her own safety, struck her foot against such obstruction, and was thereby caused to fall, breaking her thigh and inflicting upon her other painful and permanent injuries, for all of which she asks compensation in damages. The defendant denies the plaintiff's claim, and denies that it was in any manner negligent as charged. The evidence shows, without material conflict, that the cement walk, at the place in question, was about three feet wide; that a piece of it had been lifted above the general level or grade by the growth of a root of a tree standing near at hand, and that, on the evening in question, the plaintiff, accompanied by one or more friends, was passing along the walk, when she stumbled over this obstruction and fell, sustaining an impacted fracture of her right femur, close to the head of the bone. The injury was of a painful character, and caused a permanent shortening of the limb. Her knee was also severely wrenched and bruised. There is some conflict in the testimony as to the height of the obstruction in the walk, caused by the lifting of the cement, the estimates varying from one inch to three inches. Others had stumbled over it and some had fallen there, and complaint of these conditions had been made to the city's sidewalk inspector. The defendant's evidence was confined to the matter of the height to which the cement block or section of the walk was raised above the adjoining section. At the close of the testimony, the defendant moved for a directed verdict in its favor, on the ground that the testimony was insufficient, as a matter of law, to support a verdict for the plaintiff. The motion was denied, and the jury found for plaintiff, assessing her recovery at $ 750.
In argument to this court, appellant's counsel rely solely upon the proposition that the defect in the sidewalk was of such slight and trivial character that the court should hold as a matter of law, that the city is not chargeable with negligence in failing to remedy it. It is conceded that the evidence undoubtedly shows that there was a defect in the sidewalk; but counsel say it "was not such a defect that plaintiff can say that reasonable diligence or ordinary care would require that the defect be remedied so that the sidewalk be made perfectly level and without unevenness." It may well be admitted that the law does not require the city to maintain its streets and walks in a state of absolute perfection, or to keep them free from minute and trifling variations in their evenness of surface such as do not, in ordinary use, render them unsafe for travel by persons exercising reasonable care. Stated in other words, if the defect be so slight that injury therefrom to travelers exercising proper care is not reasonably to be anticipated, then there is no actionable negligence. But, generally speaking, the duty of care on the part of the city is not dependent upon the mere question of the size or proportions of the defect complained of. Size and visibility are sometimes material considerations upon the question of constructive notice of its existence; but, notice being admitted or proved, a defect is not necessarily trivial because it is small. For example, a spike left protruding an inch or two from the surface of an otherwise sound and well constructed plank walk, presents a defect of very small physical proportions, but one from which injury and danger to pedestrians may clearly be apprehended; and if the city, having notice of such condition, fails to use diligence in remedying it, with the result that a traveler is injured, it would hardly be claimed that the smallness of such defect relieved the city from the charge of negligence. In the case at bar, there was evidence from which the jury could find that a section or block of the cement from which the walk was made had been lifted to a height of from one to three inches. That such an obstruction in an otherwise smooth walk is one...
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