Hirst v. City of Missouri Valley

• Decision Date: 23 June 1922
• Docket Number: 34493
• Parties: MYRON HIRST, Appellee, v. CITY OF MISSOURI VALLEY, Appellant
• Court: Iowa Supreme Court

188 N.W. 783

193 Iowa 1225

MYRON HIRST, Appellee, v. CITY OF MISSOURI VALLEY, Appellant

No. 34493

Supreme Court of Iowa, Des Moines

June 23, 1922

Appeal from Harrison District Court.--EARL PETERS, Judge.

ACTION for personal injury caused to plaintiff by reason of an alleged defect in a sidewalk in the defendant city. Verdict for the plaintiff, and defendant appeals.

Reversed.

Frank Tamisiea and J. S. Dewell, for appellant.

Robertson & Havens, for appellee.

FAVILLE J. STEVENS, C. J., EVANS and ARTHUR, JJ., concur.

OPINION

FAVILLE, J.

Huron Street in the appellant city runs east and west. On the north side of said street is a cement sidewalk. Said street is intersected at right angles by an alley. At the junction of the street and alley there is a barn, abutting 16 feet on Huron Street. The sidewalk in question on the north side of Huron Street is six feet wide. It is made of a double row of cement blocks, each three by four feet. There is a small crack between the north and south rows of blocks. Immediately west of this row of cement blocks is the alley crossing, which is also of cement. The four blocks of sidewalk lying immediately south of the barn, at the time of the injury in question, were all somewhat lower than the row of blocks on the south side of the sidewalk. The latter appear from the evidence to be even on the surface and level with the remaining portions of the sidewalk and with the alley crossing. The four blocks on the north side of the sidewalk are all depressed at the north end, next to the barn. The evidence tends to show that the south end of the four blocks in question is practically level with the south row of blocks. The depression at the north end of these blocks next to the barn is variously estimated by the witnesses as being from two to five inches. The preponderance of the evidence, however, indicates that said depression is approximately three inches. It is the contention of the appellee that the two blocks lying immediately adjacent to the alley crossing have broken or crumbled along the west edge, next to the said crossing. It is appellee's contention that this is in the nature of a wedge-shaped piece that is broken or crumbled off; that next to the barn this depression is eight or ten inches wide, and that it extends the entire width of the sidewalk, being five or six inches wide at the south edge. This depression is referred to as a "hole." There is a very decided conflict in the evidence in regard to the existence of this so-called "hole." The appellee himself is not altogether clear regarding it, and witnesses for the appellant emphatically deny that there is any such depression distinguishable from the general depression of all four blocks of the north half of the walk. On the night in question, appellee had been attending some exercises at a church which is located on Huron Street, west of the sidewalk referred to. A severe hail and rain storm came up in the evening, and appellee left his family at the church, and proceeded eastward on Huron Street, to secure his automobile, which had been left at a point farther east. In passing over the place described, it is appellee's contention that he fell upon the sidewalk and was thrown against the barn; that, as a result of said fall, the appellee received a sprain of his left ankle.

I. At the close of the testimony, the appellant moved for a directed verdict, and among the grounds enumerated was one to the effect that the evidence failed to show that the appellant was guilty of negligence. The motion was overruled.

The case is strikingly similar to Johnson v. City of Ames, 181 Iowa 65, 162 N.W. 858, wherein we reviewed the authorities at length, in regard to alleged defects in a sidewalk of the same general characteristics as the defects in the instant case. The sidewalk in said case was constructed of cement blocks, about four feet square. There was a depression in said blocks, variously estimated as being from two to three and a half inches deep at the center of the square. It also might have been found from the record that the surface of the concrete was rough and broken and worn at the center. We said:

"That one has suffered injuries in traveling over the street does not, of itself alone, justify the inference that the street is negligently defective, nor that the pedestrian has been careless. Such injury may have been purely accidental, even though occasioned by some want of perfection in some portion of the highway, without fault of the traveler. Such may have been the situation in the case before us. In any event, we are persuaded that the proof was not such as to warrant a finding that it was due to any want of ordinary care on the part of the defendant. Had the sidewalk been made originally with such depression, the city could hardly have been thought negligent. When constructed, the walk was level, and the depression was occasioned by the action of the elements, or possibly the hand of man; and we seem not to have reached the time when even ordinarily prudent men are so vigilant as to anticipate every possibility of accident, though we seem to have come dangerously near declaring municipalities insurers of the safety of pedestrians, and exacting perfection in the maintenance of the walks by cities. If the depression was rough, the respect in which it was rough was not disclosed and if there were small pieces of concrete therein, they were not shown to be such as to render the way dangerous. Undoubtedly, the depression constituted ...