Hodges v. City of Waterloo

• Decision Date: 20 October 1899
• Citation: 80 N.W. 523,109 Iowa 444
• Parties: HODGES v. CITY OF WATERLOO.
• Court: Iowa Supreme Court

109 Iowa 444

80 N.W. 523

HODGES

v.CITY OF WATERLOO.

Supreme Court of Iowa.

Oct. 20, 1899.

Appeal from district court, Blackhawk county; Franklin C. Platt, Judge.

Action to recover damages for personal injuries. When the evidence was all in, the court, on motion of defendant, directed a verdict in its favor. From a judgment rendered on such verdict taxing costs to plaintiff, she appeals. Reversed.Boies & Boies, for appellant.

J. E. Williams and Courtright & Arbuckle, for appellee.

WATERMAN, J.

Plaintiff's injuries were caused by a fall upon a street in defendant city. The petition charges negligence in two counts. In the first it is alleged that the accident was caused by ice which had been permitted to accumulate upon the sidewalk in a rough and uneven form, and in the second count the charge is made that such walk was negligently constructed, in that the outer 7 feet of the same, the walk being 14 feet wide, was sloped too much down to the level of the driveway of the street, the place where plaintiff fell being the paved crossing of an alleyway. The street in question was one of the leading thoroughfares in the city. There was evidence tending to show that, at the point where plaintiff fell, ice had accumulated upon the walk, and that the surface was broken, irregular, and uneven, and had been so for about a week prior to the accident. Plaintiff's fall occurred in the evening of Monday, January 18, 1897. There was evidence going to show that in crossing the alleyway she stepped upon a hummock of ice that projected above the general level some four or five inches. She says that, when her foot rested upon this raised surface, “my toes did not touch, neither did the sides of my foot.”

That a city is liable for injuries caused by snow and ice upon its walks, if the surface is permitted to be in an irregular, rough, and rounded condition, is well settled in this state. Huston v. City of Council Bluffs, 101 Iowa, 33, 69 N. W. 1130. But defendant seeks to meet this point by showing that, but a day or two previous to the accident, there was a drizzling rain, which froze as it fell, covering the streets and walks with a glare of ice, and that it was this condition which caused the accident. We quote something of what defendant'scounsel say on this point: “The undisputed evidence in this case shows that upon Saturday and Sunday the storm was of rain, sleet, and snow, and the ground was covered, as well as the streets, with a coating of ice from one-half inch to one inch thick. And the undisputed evidence in the case shows that immediately following the storm the weather turned suddenly cold. Can it, then, be said that the city was negligent in failing to remove the ice and snow within a few hours after the formation thereof? There is no evidence to show whether the plaintiff slipped upon the old accumulation of ice or upon that just formed by the preceding storm. It is just as probable that one was the cause of the accident as the other. There is no evidence to show which is the cause, and, if such is the case, the plaintiff must fail, under the authorities cited. Plaintiff's evidence shows that the obstruction about which she complained, and which caused her to fall, was ‘a point of ice’ on or near the approach to the alley. The plaintiff argues that the natural and logical inference is that the old accumulation must have contributed to the injury. But can plaintiff say that, from the evidence in the case, it was an old accumulation of ice that caused her to fall? Can plaintiff say that the storm of Saturday, Sunday, and that day of the accident had not caused the obstruction of which she complains? If we are to observe the rule of law announced in all the cases, it is necessary for the plaintiff to show, by a preponderance of the evidence, whether it was the old accumulation of ice, of which she claims the city had notice, or the new accumulation, for which the city was in no way responsible.”

If this icy projection existed before the storm and freezing weather of the 16th and 17th, then the fact that it was covered with a fresh coating of ice thereby will not tend to relieve defendant from liability. The rule is thus stated in Langhammer v. City of Manchester, 99 Iowa, 295, 68 N. W. 688: “When two...