Hanson v. City of Anamosa

• Decision Date: 29 June 1916
• Docket Number: No. 30698.,30698.
• Parties: HANSON v. CITY OF ANAMOSA.
• Court: Iowa Supreme Court

177 Iowa 101

158 N.W. 591

HANSON

v.CITY OF ANAMOSA.

No. 30698.

Supreme Court of Iowa.

June 29, 1916.

Appeal from District Court, Jones County; M. P. Smith, Judge.

Action for damages alleged to have been caused by a defective sidewalk resulted in a verdict for defendant, and judgment thereon. The plaintiff appeals. Affirmed.Remley & Remley, of Anamosa, and L. A. Jensen, of Forest City, for appellant.

C. J. Cash, B. E. Rhinehart, and C. B. Paul, all of Anamosa, for appellee.

LADD, J.

The plaintiff, while walking along the north side of Main street, in Anamosa, after crossing Garnavillo street, fell and was seriously injured. Main street is paved with brick, and this pavement extends north somewhat beyond the Main street line, and is used as a crossing in connecting the cement walks on the north side of Main street east and west from Garnavillo street. The curbing is a foot high rising about six or more inches above the pavement and is six inches thick and is laid from Main street around to the north in Garnavillo street next to the end of the sidewalk. The end of the plank approach was beveled so as to fit against it, and the other end was held by a stone set in the pavement. It was made of boards about six inches wide and two inches thick. The sidewalk was even with the curbing and level when made, as was the end of the approach, but the south side of the latter had settled so that next to the curbing it was, according to one witness, from two and one-half to three inches lower than the curbing. This approach extended three feet and eight inches west from the curbing and was five feet wide. A plank had been split, but was held in place by a brick. There was an elm tree about ten inches east of the curbing and about two feet north of the north side of the approach. The cement walk had been laid around this tree, which was about two feet in diameter at the surface of the ground. The walk though in the level with the curbing when constructed had been raised by the growth of the roots of the tree at the time plaintiff was injured so that the top of the sidewalk east of the approach and at the north side of it was four inches above the curbing, three and one-fourth inches above at the center, and two inches at the south side, and the walk sloped toward the southeast. There were two breaks in the cement; the portion between these being lower than on either side. An arc light was suspended at the center of the street intersection, and on the northeast corner was a hotel, and on the corner to the west a store. The plaintiff came out of the store and walked across Garnavillo street in going to the place where her husband was employed in order to accompany him home. She testified:

“I caught my toe on the raised place where that approach was. I mean I caught on the sidewalk that stuck up above the approach. I couldn't say which foot it was, just as I came up that approach and stumbled along and fell. I am sure I stubbed my right toe there, because I supposed it was even like other places. I know I stubbed my toe because I started to stumble right there. There wasn't anything else there to make me stumble, I know, just as I stepped off the approach as I was going to enter the sidewalk; I supposed that it was even with the approach. * * * I did not have any knowledge of any elevation at that corner. I fell about six or seven feet from the approach. I ran along trying to balance myself, and finally fell on my left side.”

This occurred January 14, 1914, at about 8 o'clock in the evening. There was evidence tending to show that the condition of the walk might have been seen at a considerable distance, and the city admitted having had full knowledge of its condition long enough to charge it with notice.

[1] Several grounds of negligence were alleged, but the two submitted were: (1) Whether the city was negligent in permitting the sidewalk and approach to remain in the condition described; and (2) whether the sidewalk was out of repair. The evidence was ample to carry these issues to the jury. Whether plaintiff contributed to her injury by her own negligence evidently was the main issue. Conditions were not such that it can be said that plaintiff, if she knew these, necessarily was negligent in traveling that way; for, notwithstanding the defects, she might have concluded that in the exercise of ordinary care she could pass safely.

[2] The rule is well established that mere knowledge of the defective condition of a public street will not, as a matter of law, render a party guilty of negligence in using the same, but to accomplish this it must also appear that he knew, or as an ordinarily cautious person ought to have known, that it was imprudent and dangerous to attempt its use. Reynolds v. City of Centerville, 151 Iowa, 19, 129 N. W. 949;Gibson v. City of Denison, 153 Iowa, 320, 133 N. W. 712, 38 L. R. A. (N. S.) 644.

If, then, the city was found to have been negligent in allowing the approach and walk to be and continue in the condition described, the jury must have proceeded to pass on the issue as to plaintiff's contributory negligence, and its decision with reference thereto depended on whether: (1) She knew, or in the exercise of ordinary care should have known, of the condition of the walk; and (2) if she knew or ought to have known whether in the exercise of ordinary prudence she might have concluded that by exercising ordinary care she could pass over safely; and (3) whether in traveling that way with or without knowledge, actual or imputed, she exercised that degree of care an ordinarily prudent person would under like circumstances. Plaintiff first testified that she did not have knowledge of any elevation of the walk at the corner; that she supposed it was even with the approach. On the other hand, she admitted having gone that way once a month during the 16 months she had lived in Anamosa, and that conditions there were observable from across the street “if one takes particular notice,” and testified:

“Q. When you were walking over from the Warren's store and over towards Gildner's store, going east, just state to the jury whether you were looking ahead or whether looking down or up, or which way, if you remember. A. I don't remember which way I was looking, I usually look straight ahead as I walk along.”

She also testified that the sidewalk looked five inches higher than the approach, but that she could not say when she noticed this.

“Q. Did it look that high that night? A. I couldn't tell just how high it looked. I stepped my foot--it was raised higher than the approach. Q. You knew it was higher, but you didn't know how high? Is that it? A. I couldn't tell just how high.”

This testimony neither shows that she was not looking ahead nor that she observed when nearing the approach that the sidewalk was above it, though in attempting to step on it she ascertained that it was higher than the approach.

[3][4] A pedestrian making use of city walks is not bound to constitute himself an inspector of walks. He is not required at his peril to observe defects in the street and their location. He has the right to assume that, in the absence of knowledge to the contrary, these are in a reasonably safe condition, and, if not, that the city will within a reasonable time put them in such condition, and can be charged with such knowledge of the condition of the streets only when, acting as an ordinarily intelligent and observing man in the exercise of ordinary caution, he would likely observe this in passing over the streets and remember at the time in question. When out for a walk merely or on some errand or on the way to business, people usually are more or less absorbed in conversation or thought, or their attention may be diverted in some other way. Localities are often overlooked or passed unnoticed, and it cannot be said that the circumstance that plaintiff had passed that way at least once a month for some time previous conclusively established that she knew or as an ordinarily cautious person ought to have known the condition of the approach and walk at the place in controversy. That issue was for the jury, as was also the issues as to whether, with such knowledge, she was justified in thinking she might pass over in safety, and whether in so doing she exercised ordinary care for her own protection.

[5] II. The night watchman of the city testified that it was his duty to observe the arc lights and whether they were burning or not; that he kept a record of any that were out, and immediately reported the fact to the electric light and power company and afterwards to the city council. He was asked whether the arc light at the intersection of the streets mentioned went out during the night of January 14, 1914. An objection as incompetent and that the writing is the best evidence was overruled. Whether there was an answer does not appear. After eliciting the statement that witness had no recollection outside the record made by him counsel moved that the answer said to have been elicited be stricken. This motion was overruled. Assuming that the answer was responsive, there was no prejudicial error in the ruling; for the record itself was admissible. Edwards v. City of Cedar Rapids, 138 Iowa, 421, 116 N. W. 323;State v. Brady, 100 Iowa, 191, 69 N. W. 290, 36 L. R. A. 693, 62 Am. St. Rep. 560. All decided in State Bank v. Brewer, 100 Iowa, 576, 69 N. W. 1011, was that a motion to strike out the evidence is essential in order to challenge its admissability when apparently rightly received, but is subsequently shown really to have been inadmissible.

[6][7][8] III. The street commissioner, after testifying to his familiarity with the corner and how lighted, was asked:

“How is this corner lighted, taking into consideration the street lights and private lights as compared with the other lights of the city? A. One of the best light corners in the city.

Mr. James E. Remley: We move to strike out the answer for the...