Gibson v. City of Denison

• Decision Date: 15 December 1911
• Citation: 153 Iowa 320,133 N.W. 712
• Parties: GIBSON v. CITY OF DENISON.
• Court: Iowa Supreme Court

153 Iowa 320

133 N.W. 712

GIBSON

v.CITY OF DENISON.

Supreme Court of Iowa.

Dec. 15, 1911.

Appeal from District Court, Crawford County; F. M. Powers, Judge.

Action for damages resulting from a fall, caused by a defective sidewalk, in November, 1904. There was a trial in September, 1905, at which the jury, by direction of the court, returned a verdict for defendant. Judgment was entered thereon, and in the month following an appeal to this court was perfected. Affirmed.J. F. Glenn and P. W. Harding, for appellant.

T. V. Walker and Conner & Lally, for appellee.

LADD, J.

It may be conceded that the walk, as alleged in the petition, was “an old, worn-out, rotten, decayed sidewalk, having been laid more than 10 years” prior to the injury, and that for many years “the stringers supporting it had become rotten, worn out, and decayed to such an extent that the sidewalk boards nailed thereto would not hold,” and were “loose and dangerous to passengers passing over it,” and that in maintaining the sidewalk in this condition, the defendant was negligent. The sole inquiry is whether it conclusively appeared from the evidence that plaintiff by his own negligence contributed to his injury. Sweet street in the defendant city extends south of the Northwestern Railroad track, immediately beyond which there is a steep grade sloping to the south. On the west side of the street, down this incline, was the sidewalk in question, 165 feet long. The highway was level, graveled, and cindered, and extended on to the south past plaintiff's home.

The plaintiff testified that: “I knew that it always had been an unsafe walk, and on the date named I got on this sidewalk going to my home; just dropped in behind Harry Warmouth, a young man who was with me, and about a step ahead of me. He was walking on the outside, and I towards the center. He tipped up a board that did not seem to be fastened. My left foot went under it, and in struggling to get my foot loose I fell forward. Getting my foot out threw me on my side, and I struck with my full weight on the end of the plank.”

On cross-examination: “Before this accident happened, I could see as well as any common man, and there was nothing to hinder me from seeing the highway as it was, and as I did; nothing to hinder me from seeing the railroad tracks. And the only difference between taking the sidewalk and taking the highway from the railroad tracks to my home is that I could take the highway at the south side of the railroad track and at the north end of the sidewalk, and follow it all the way to my home; or I could take the sidewalk and follow it 165 feet, and then cross a ditch at the south end of the walk, and go over to the highway, and I had to take the highway the rest of the way home. This I understood all the time; and when going from my home uptown I either had to go up the highway to the track, or else cross the ditch, and go over to the sidewalk and take it up to the track. And I knew that the highway was practically safe to travel, unless it was muddy or obstructed by teams, and that there was nothing that I remember of to prevent me going over on the road, if I had wanted to do so; and by going about 14 feet from the north end of the sidewalk, on a perfectly level ground, I would have reached...