Houseman v. City of Belle Plaine

• Decision Date: 13 July 1904
• Citation: 124 Iowa 510,100 N.W. 343
• Parties: HOUSEMAN v. CITY OF BELLE PLAINE.
• Court: Iowa Supreme Court

124 Iowa 510

100 N.W. 343

HOUSEMAN

v.CITY OF BELLE PLAINE.

Supreme Court of Iowa.

July 13, 1904.

Appeal from District Court, Benton County; G. W. Burnham, Judge.

Action for damages. From a judgment against it, defendant appeals. Affirmed.S. B. Montgomery and Gilchrist, Whipple & Brown, for appellant.

Tom H. Milner, for appellee.

LADD, J.

The plaintiff was returning home with a friend, Mrs. Hoover, from lodge, at about 11 o'clock p. m. of May 16, 1902. The walk was on the north side of the street, and that part of it in front of Dodd's premises was out of repair. It was of bricks, many of which were out of place, and several holes had been dug in it. The particular hole into which plaintiff's foot slipped as she stepped on a brick next to it was about a foot in diameter and three or four inches deep. The appellant insists that, according to her own testimony, she ought to be adjudged guilty of contributory negligence. She had lived in the vicinity for many years, and was familiar with the condition of the walk. She thought about the hole, and knew it would be a dangerous place to pass, and mentioned it to her companion as they approached it. She was on the north side of the walk, and Mrs. Hoover on the south side, walking slowly, arm in arm, and picking her way. She appreciated the necessity of being careful in order to avoid injury. “Q. You knew it would be imprudent to enter upon it without exercising great care? A. Yes, sir. * * * Q. Well, you had walked slowly all the way from the lodgeroom? A. We walked more carefully over this piece of walk than we did coming over the others.” She testified that, because of long familiarity with the locality, she knew when she reached the Dodd lot. “Q. You could see the fence, could you? A. Yes, sir; I think so. * * * Q. When you came to the walk, you recognized the walk? A. Yes; I knew we were on the walk. * * * Q. Couldn't you see the walk anywhere along there? A. No, sir. * * * I thought I had gone between the hole and the fence far enough to avoid getting into the hole. Q. Did you put your hand out to see whether the fence was there? A. No, sir; I had one arm full of books, and the other arm Mrs. Hoover had a hold of. Q. Which arm was full of books? A. The one next to the fence. Q. Did you make any effort to see if you were close to the fence? A. No, sir; I had my books in this arm. Q. What efforts did you make to find out whether you were close enough to the fence to pass this dangerous place? A. I used my judgment. Q. You could not see anything at all? A. No, sir; I could not see the sidewalk. Q. Could you see the fence? A. No, sir. * * * I thought I was going to step around the hole. * * * Q. Did you at that time try to ascertain by the fence how close you were to the north edge of the sidewalk? A. No, sir; I had my arm full of books, and didn't reach toward the fence.”

The mere fact that the walk was in an unsafe condition did not preclude its use by plaintiff, for the evidence tended to show that it was the only way by which she could well reach her home, and she must have taken the walk or the center of the road. See Sylvester v. Casey, 110...