Gregg v. Town of Springville

• Decision Date: 22 September 1919
• Docket Number: 32620
• Citation: 174 N.W. 23,188 Iowa 239
• Parties: MRS. F. A. GREGG, Appellant, v. TOWN OF SPRINGVILLE, Appellee
• Court: Iowa Supreme Court

174 N.W. 23

188 Iowa 239

MRS. F. A. GREGG, Appellant, v. TOWN OF SPRINGVILLE, Appellee

No. 32620

Supreme Court of Iowa, Des Moines

September 22, 1919

REHEARING DENIED JANUARY 26, 1920.

Appeal from Linn District Court.--F. F. DAWLEY, Judge.

ACTION at law to recover damages for personal injury. There was trial to a jury, a directed verdict for defendant, and plaintiff appeals.--Reversed and remanded.

Reversed and remanded.

Rickel Dennis & Thompson, for appellant.

Voris & Haas, for appellee.

WEAVER J. LADD, C. J., GAYNOR and STEVENS, JJ., concur.

OPINION

WEAVER, J.

The plaintiff, a woman about 73 years of age, fell upon a sidewalk in the town of Springville, and thereby received injury to her person. She alleges that such injury was occasioned by the negligence of the defendant in permitting its walk to become obstructed by an accumulation of ice, on which, without fault on her part, she slipped and fell. The defendant denies that it was in any degree negligent or at fault with respect to the condition of the walk or plaintiff's alleged injury thereon.

The evidence on part of plaintiff tends to show that she was on her way home from church in the evening of January 14, 1917, accompanied by her daughter and another woman. She had received an injury by a fall in her home a year before, but had largely recovered therefrom, and was walking slowly between her companions. Part of the distance, they walked in the middle of the street, to avoid the ice on the walks, until, as they claim, they reached a point where the street traffic was such as to lead them to take to the walk. That there was ice at the place in question, and that plaintiff suddenly slipped upon it and fell, is shown without question. The turning point in the case, so far as it relates to this appeal, is upon the question whether there is any evidence in the record upon which the jury could properly have found that the town was negligent in permitting the walk to be in this condition.

It is an elementary doctrine that, in considering a question of this character on appeal, the court will give to the evidence the most favorable construction of which it is fairly capable in behalf of the party against whom a verdict has been directed, and if, when thus considered, it appears sufficient, if true, to sustain a finding in such party's favor, the order directing a verdict will be held erroneous. Bearing this rule in mind, let us inquire first into the duty of cities and towns with respect to the accumulation of ice upon its public walks. It is well settled by our decisions that:

"No such duty exists while the snow and ice remain unchanged by the interference of man or other artificial cause. That duty arises only when, by reason of such interferences with natural conditions, the snow or ice become rigid or rounded or uneven, or is made to assume some other form or present some other danger than would result solely from natural causes." Sankey v. Chicago, R. I. & P. R. Co., 118 Iowa 39, 91 N.W. 820.

In the more recent case of Tobin v. City of Waterloo, 131 Iowa 75, 77, 107 N.W. 1031, the rule is restated in somewhat more specific terms, as follows:

"Ice and snow accumulated on the walk from natural causes, though slippery because of their smooth surface, is not a defect for which the city may be held responsible. It is only when such ice and snow are allowed to remain upon the walk until, by the tramping of pedestrians, freezing and thawing, or other causes, the surface becomes rough, rigid, rounded, or slanting, so that a person in the exercise of ordinary care cannot pass over it without danger of falling, that the defect is such as to render the city liable."

In Griffin v. City of Marion, 163 Iowa 435, 444, 144 N.W. 1011, it was held that municipal liability in such cases "is not limited to the snow and ice becoming rigid, rounded, or uneven, but the city is charged with the duty when the snow and ice is made to assume some other form or present some other danger than it would otherwise solely from natural causes." In Templin v. City of Boone, 127 Iowa 91, 102 N.W. 789, the court, speaking by Deemer, J., laid down the rule that "where, by reason of travel or action of the elements, it becomes rounded or worn into ridges, uneven, and irregular, due care on part of the city may demand its removal;" and a verdict against the city was there sustained, where the evidence tended to show "that snow had fallen upon the sidewalk many days prior to the accident, which had not been removed; that people traveling over the walk had made a beaten path through the snow; that it had thawed and frozen until the walk was in a rough and uneven condition, the center thereof, whereon the path was made, being rounded and sloping toward either edge of the walk; that the water from the melting snow ran down onto the walks and there froze, making the same slippery and unsafe." These cases, selected from many of the same general tenor, sufficiently illustrate the rule applicable under such circumstances.

Turning now to the evidence upon the condition of the walk, we find the following: The plaintiff herself, as perhaps was quite natural under the circumstances, appears to be unable to speak with any marked definiteness, except that she "fell quick on account of the ice," and that it was smooth there; but other witnesses are quite definite upon this point. Her daughter, who was present at the time, says:

"It was very icy in the center, and on each side of the walk there was a little snow, but, along toward the center of the walk, the snow had been worn off, and it was just as slick as glass: that is, it was so icy in the center that it was very slippery. It was higher in the middle, and sloped toward both sides. Her feet went right out from underneath. She went quickly from one side. In the middle of the walk where mother fell, the snow and ice was thicker, and kind of sloped off. It sloped east and west, because it was so much thicker in the center."

The thickness of the ice along the ridge or middle of the walk is estimated by one witness at four inches, and by another at an inch and a half. Another witness, who was familiar with the walk and with the use of it by young people for coasting upon sleds, describes its condition and the freezing and thawing of the ice and the effect upon it of its use as a coasting place, and says that:

"After freezing, there wouldn't be any sharp bumps, or anything like that * * * it would be little larger ones, smoothed off by the sled runners. * * * The ice sloped more towards the street, because the sleds go the other side, and they would sometimes slide sideways."

This witness further says that he was near at hand when plaintiff fell, and rendered her or her friends some assistance. Being asked, on cross-examination, to state the...