Griffin v. City of Marion

• Decision Date: 14 January 1914
• Citation: 144 N.W. 1011,163 Iowa 435
• Parties: EMILY L. GRIFFIN, Appellant, v. CITY OF MARION, Appellee
• Court: Iowa Supreme Court

144 N.W. 1011

163 Iowa 435

EMILY L. GRIFFIN, Appellant, v. CITY OF MARION, Appellee

Supreme Court of Iowa, Des Moines

January 14, 1914

Appeal from Linn District Court.--HON. MILO P. SMITH, Judge.

THIS was a suit by plaintiff for damages for personal injuries alleged to have been caused by defective sidewalk and approach thereto. At the close of all the evidence, the court directed the jury to return a verdict for defendant. The plaintiff appeals.--Reversed.

Reversed and remanded.

Voris & Haas, for appellant.

M. W Courtney and F. L. Anderson, for appellee.

PRESTON J. LADD, C. J., and WEAVER and EVANS, JJ., concur.

OPINION

PRESTON, J.

Defendant is a city of the second class. Eighth avenue runs east and west, and Twelfth street runs north and south, crossing and intersecting Eighth avenue. The Methodist Church stands at the southeast corner of the intersection of Eighth avenue and Twelfth street. In going north past the church, on the east side of Twelfth street, when Eighth avenue was reached, there was a step down from the sidewalk to a cement approach. The drop from the top of the walk to the approach was six and one-half inches. The cement approach slanted to the north down to the level of the asphalt pavement; it extended out six feet and three inches from the edge of the walk to where it joined the asphalt. It was seven feet wide, and there was a slight side slope of two inches. The slope or incline of the approach was nine inches. This approach was constructed by the city in June, 1910. Prior to that time there had been a corrugated iron apron used as an approach at this point, but this iron apron was sometimes knocked out of place by automobiles and other vehicles; it was removed and replaced by the present approach. The street at the corner of Eighth avenue and Twelfth street was much traveled. Plaintiff was traveling north, and her claim is that she attempted to walk down this incline when she slipped down and was injured.

The motion to direct a verdict was on substantially the following grounds:

(1) That the approach was not negligently constructed, and there was no negligence on the part of the city in permitting it to exist.

(2) That it appears that the city employed a competent engineer to prepare a plan for the approach, which plan was adopted, and the approach constructed in accordance therewith, and therefore the city was not negligent in constructing or maintaining the same.

(3) That it does not appear that ice or snow had accumulated on the approach in a rough, uneven, or irregular form for such a length of time as that the city was negligent in failing to remove the same.

(4) That it does not appear that plaintiff's fall was caused by ice or snow upon the approach, and it is as reasonable to assume that she fell from some other cause.

We may first dispose of some of the less important points. There are but two methods of getting from the sidewalk to the pavement, one is by a step or steps, and another is by an approach of some kind. In this case one step would have been fifteen and one-half inches high. The approach was on a slope of nine inches in seventy-five, or one in eight. In our opinion, the construction of this approach on such a slope would not of itself warrant a finding that the city was negligent. It was so held in Lush v. Town of Parkersburg, 127 Iowa 701, 104 N.W. 336, where the slope was greater.

Furthermore, defendant pleaded, and we think it was established by the evidence, that the city employed a competent engineer to prepare a plan for the approach, which was adopted by the defendant, and the approach constructed in accordance therewith. In dry weather, or in any ordinary weather, an ordinary cement walk or approach on such a slope as this would be safe.

It is said by appellee that evidence of other accidents at this point is not admissible. The evidence went in without objection, and defendant has not appealed. There is nothing for us to pass upon as to this point.

Plaintiff testified that she was not certain whether she fell at the first or second step she took as she started down on the approach. From this, counsel for defendants seek to apply the rule in Tobin v. Waterloo, 131 Iowa 75, 107 N.W. 1031. That was a case where the ice on a part of the walk had become rough and irregular; at other places on the walk the icy condition was produced by natural causes, and the plaintiff was not able to say whether she fell on the rough ice or the other. But here plaintiff claims there was ice or hard snow which had accumulated by travel and other than natural causes; that such was the condition of the approach at the place where she slipped. There is evidence tending to show that the entire approach was covered with ice or hard-packed snow. The evidence tends to show that her feet went out from under her suddenly, and that she fell backwards and broke her arm. Under the circumstances it would be difficult to tell precisely whether it was at the first or second step. We do not see that it makes any difference if the icy condition was the same where she stepped both times.

It is contended by appellee that the petition alleges only that defendant permitted the approach to remain covered with snow and ice, and that this does not constitute negligence on the part of the city. Tobin v. Waterloo, 131 Iowa 75, 107 N.W. 1031, and other like cases are cited. This is the rule where the slippery condition is caused by sleet or snow as it falls naturally from the heavens over all the walks of the city, which walks are not otherwise defective.

We think the allegations of the petition are broader than claimed by appellee, and sufficient to cover the theory of the evidence tending to show that the ice and snow on this approach was caused by accumulations from snow carried by pedestrians, and in other ways than natural causes. There was no motion by defendant for a more specific statement. The petition, in addition to the allegations as to its sloping construction alleges: "That for a long time prior to the injury complained of the said approach was negligently permitted to exist and remain covered with ice and snow in a condition dangerous to pedestrians passing thereover. . . . And said defendant and its officers and agents had actual knowledge of the aforesaid dangerous and unsafe condition at the time of, and long prior to, the happening of the injury. . . . That such condition had existed for such a length of time that, in the exercise of reasonable diligence and ordinary care, they might have remedied the same; and that said dangerous condition had existed for such length of time that defendant and its officers, in the exercise of ordinary care, should have known thereof and remedied the same." The petition might have alleged that the dangerous condition and negligence relied upon was caused by snow being carried on the approach artificially. The allegation is broad enough, under the rule announced for pleading negligence, in Grinde v. Railway, 42 Iowa 376; Gordon v. Railway, 129 Iowa 747, at 752.

We shall refer briefly to the testimony of some of the witnesses to show the tendency of it, and the conditions, and cause of the icy condition of the approach.

Plaintiff testified: "This injury occurred January 12, 1912. When we came to the Eighth avenue crossing, at the northwest corner of the Methodist Church, I stepped down with one foot and then with the other, and as soon as my foot struck the slant my foot went out from under me quick. I stepped off the end of the sidewalk to this sloping place. I don't know just how far down it was. I slipped to the north. I fell so quickly that I didn't realize it. The approach was slippery. What caused my feet to slip there, the cause of my fall, was the slanting condition of the sidewalk, which was covered with snow and ice. I went so quickly that I can hardly tell how it happened. I fell, and my feet went out in front and I fell backwards. I wore rubbers over my shoes that evening. I did not wear high-heeled shoes. The snow was packed down by the walking over it."

The lady who was with plaintiff says: "Plaintiff was on the approach when she fell"; that the approach was slippery and covered with hard snow; that it was slippery all the way; the snow was packed.

Another witness testifies: That when the approach was constructed he had a conversation with a member of the city council that he thought the approach was very dangerous and would cause the city trouble; that this was about the time the approach was being completed. The councilman said he did not think it was exceedingly dangerous. That the conversation was while the work was being done--about the time it was completed--and...