Hartman v. City of Muscatine
| Decision Date | 22 December 1886 |
| Citation | 70 Iowa 511,30 N.W. 859 |
| Parties | HARTMAN v. CITY OF MUSCATINE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Muscatine county.
Action to recover damages for an injury received by the plaintiff on the ground that the city had been negligent in the construction of a crossing over a street. Trial by jury; judgment for the plaintiff, and defendant appeals.H. J. Lander, for appellant.
Brannan, Jayne & Hoffman, for appellee.
Some two or three years prior to the accident the city caused the street to be raised so that there was a slope from the street to the sidewalk. The plaintiff had knowledge of the condition of the street and slope, having passed over it daily for more than a year. The accident occurred in March, about seven o'clock in the morning. There was a sidewalk on the northerly side of the street for some distance, and when the plaintiff left his home he traveled on such walk, and to the end thereof, when he attempted to cross the street to the southerly side, where there was a sidewalk. In so doing he passed over the slope or descent in the street. When passing down the slope he slipped, fell, and was injured. There had been a fall of sleet or snow during the previous day, which was Sunday, or the following night. This rendered the crossing more dangerous than it otherwise was, and the plaintiff testified that he knew it was dangerous when he made the attempt to cross. The plaintiff was not compelled to cross at that place but could have passed up the street without increasing the distance or inconvenience, except such as would have occurred because of the difference between walking along the street or sidewalk.
It will be conceded that the plaintiff was not compelled to walk along the street, but that he had the right to cross, even if it was dangerous to do so. That is, he had the right to take the dangerous way if he saw proper; but the question remains whether he was not guilty of such contributory negligence, in so doing, as to prevent his recovery. The foregoing facts are in no respect controverted. This being so, the law must determine whether he can recover. McLaury v. City of McGregor, 54 Iowa, 717;S. C. 7 N. W. Rep. 91. The mere fact that the plaintiff knew the crossing was dangerous, and there was a safe way he could have taken, will not prevent a recovery. Rice v. City of Des Moines, 40 Iowa, 638;Walker v. Decatur Co., 67 Iowa, 307;S. C. 25 N. W. Rep. 256. But, if knowing it was dangerous,...
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