Howard v. City of Waterloo

• Decision Date: 13 November 1928
• Docket Number: 39001
• Citation: 221 N.W. 812,206 Iowa 1109
• Parties: MRS. E. E. HOWARD, Appellee, v. CITY OF WATERLOO, Appellant
• Court: Iowa Supreme Court

221 N.W. 812

206 Iowa 1109

MRS. E. E. HOWARD, Appellee, v. CITY OF WATERLOO, Appellant

No. 39001

Supreme Court of Iowa, Des Moines

November 13, 1928

Appeal from Black Hawk District Court.--H. B. BOIES, Judge.

Action for damages, resulting from a fall upon a sidewalk. Trial to the court and a jury. Verdict and judgment thereon for the plaintiff. The defendant appeals.

Affirmed.

Walter P. Jensen, for appellant.

Reed Tuthill & Reed, for appellee.

WAGNER J. STEVENS, C. J., and DE GRAFF, ALBERT, and MORLING, JJ concur.

OPINION

WAGNER, J.

The defendant complains because of the overruling by the court of its motion for directed verdict, which was made at the close of plaintiff's evidence, and renewed at the close of all the evidence.

Only three propositions are presented for our determination. (1) Was the defect such as that the court could properly allow the jury to find negligence on the part of the defendant city? (2) Did the defendant city have constructive notice of said defect? (3) Was the plaintiff guilty of contributory negligence, as a matter of law?

The defective walk was constructed of cement, and was in front of a garage, near the Strand Theater, on the same side of the street. Said walk, in accordance with the manner in which cement walks are usually constructed, was divided into sections, or blocks, and was three sections wide. The defect was in the middle section. One of the blocks in said section had cracked, about two inches from the corner, the crack being irregular in shape, and leaving a sort of triangular piece, with a rough and jagged edge, the same height as the block of cement between it and the building. The portion of the block immediately contiguous to said triangular piece thus broken off had sunk below the level of the remainder of the walk adjacent thereto. The plaintiff testified from observation, in substance, that the adjacent block and said triangular piece were two inches higher than the portion of block thus depressed. There is testimony for plaintiff, from actual measurements taken, that said distance was from 2 inches to 2 1/4 inches, while the defendant's testimony of like character is that said distance is 1 3/4 inches. From the point of lowest depression, there was a gradual slope to a point between 2 and 3 feet therefrom, where the adjacent blocks of cement again became of equal height.

At the time of the accident, the plaintiff and her sister-in-law were walking side by side, the plaintiff being to the right. The plaintiff's testimony is that, in walking, her right foot struck the point of lowest depression in the sunken block, adjacent to the aforesaid triangular piece broken therefrom. She testified that "I caught my foot in a protrusion of cement, and was thrown to the cement sidewalk; that the three-cornered piece stuck up 2 inches, and it caught my toe as I went to make the step;" that, before she could get loose, it had wrenched her ankle.

"I knew that I caught my foot on something that oughtn't to be there. My foot was sore even on the side, and my little toe was bruised. * * * I knew I caught it in that place. The blocks were rough and broken a little bit, and this one in particular, where I caught my foot. Q. Well, do you mean it was broken off from where it had originally been? A. Yes, it was rough,--not a whole lot, but some. The part that stuck up, the one that stuck up mostly on the north * * * it was rough, and it stuck up so I caught my whole toe."

It thus appears that it is plaintiff's claim that, in stepping into the depression with her right foot, the toe was caught by protruding cement from the triangular piece of the block from which the sunken part of said block had been broken, and that this caused her to stumble and fall.

As to whether or not the facts of this case as to negligence on the part of the city are such as to present a jury question, the defendant relies upon Johnson v. City of Ames, 181 Iowa 65, 162 N.W. 858, and Hirst v. City of Missouri Valley, 193 Iowa 1225, 188 N.W. 783. We held that the facts in the latter case were strikingly similar to the facts in the former case.

Plaintiff relies upon Welsh v. City of Des Moines (Iowa), 170 N.W. 369 (not officially reported); Geer v. City of Des Moines, 183 Iowa 837, 167 N.W. 635; Bailey v. City of LeMars, 189 Iowa 751, in all of which the case of Johnson v. City of Ames is distinguished. In Welsh v. City of Des Moines, supra, we said:

"We cannot hold, however, as a matter of law, that a municipality may never be charged with negligence, in case of injury, by permitting elevations or depressions of 1 1/2 to 2 inches in sidewalks to remain therein indefinitely, after notice, actual or constructive, thereof. The question is one peculiarly for the jury, and whether or not such municipality in a given case has negligently permitted such defect to exist should be determined in the light of all the facts and circumstances surrounding the occurrence. This is in harmony with the prior holdings of this court."

In Geer v. City of Des Moines, supra, we said of Johnson v. City of Ames, supra:

"The cited opinion does not negative the duty of the city to exercise reasonable care in the inspection and oversight of its walks, or its duty to remove an obstruction which is manifestly a danger to pedestrians. Neither can it be construed as holding, as a matter of law, that the existence of an obstruction or stumbling block in a sidewalk is not a defect constituting actionable negligence on the part of the city, simply because it is not more than two or three inches in height."

In Bailey v. City of LeMars, supra, where the elevation in the sidewalk was only one inch, and the testimony disclosed that the edge of the elevated portion of the walk on which the plaintiff caught the heel of her shoe was jagged, we said that the same distinction which existed between Johnson v. City of Ames and Welsh v. City of Des Moines could be made, as applied to the facts in said case. We there said:

"In the instant case, it is not so much a question as to the depth of the hole, but is a question whether the hole was dangerous because of the condition of the jagged, overhanging edge, and the other circumstances."

We think that the instant case is controlled by the cases relied upon by the appellee, and that the same distinction exists between this case and Johnson v. City of Ames, supra, as did in the aforesaid cases. In the instant case, we have a depressed portion of the walk, 1 3/4 inches to 2 1/4 inches lower than the next adjacent block of cement, and the same distance lower than the triangular piece of the broken block, with the rough and...