Humphrey v. City of Des Moines

• Decision Date: 16 October 1945
• Docket Number: 46741.
• Parties: HUMPHREY v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

20 N.W.2d 25

236 Iowa 800

HUMPHREY v. CITY OF DES MOINES.

No. 46741.

Supreme Court of Iowa

October 16, 1945

Raymond E. Hanke, of Des Moines, for appellant.

F T. Van Liew, Paul Hewitt, Harvey Bogenrief, and C. B Hextell, all of Des Moines, for appellee.

MILLER, Chief Justice.

Plaintiff's petition asserted: About 2 p. m., on June 25, 1944, he was operating a Chrysler automobile on a graveled street known as Madison Ave. in the city of Des Moines, in the vicinity of East 17th St., when he ran into holes or ditches in the street, traveled some little distance and overturned receiving personal injuries; that defendant city was negligent in failing to keep said street in repair and in a safe condition in that it allowed a deep hole or ditch to extend into and take up part of said graveled street, making it dangerous for those traveling kin automobiles thereon, and that plaintiff was free from contributory negligence. Defendant's answer admitted that plaintiff's automobile overturned on East Madison Ave but denied that plaintiff ran into holes or ditches in the street, denied that defendant was negligent in maintaining said street, alleged that the street was in a reasonably safe condition for vehicles that were driven in a lawful manner at a lawful rate of speed, and denied that plaintiff was free from contributory negligence because he traveled at an excessive speed, failed to keep a proper lookout and failed to keep the automobile under control. Plaintiff's reply reasserted that plaintiff was free from contributory negligence.

At the close of the plaintiff's evidence in chief the court directed a verdict for the defendant. Hence, we have only the plaintiff's evidence before us. Plaintiff testified that he was proceeding east on Madison Ave., approaching a railroad crossing; about 100 feet west of the railroad crossing he passed in front of the residence of Leo Pickens there were trees on both sides of the street in front of Pickens' home and they cast shadows; as he neared Pickens' house, he saw two holes in the street slightly to the right of the center of Madison Ave.; he had started to slow down for the railroad crossing, and was not traveling more than 20 miles an hour; he saw the holes in the street when about 50 or 60 feet from them; he attempted to straddle the holes but hit the first one with his right front wheel; as that occurred his foot hit the accelerator, causing the car to increase its speed; just about then he hit the railroad tracks; before getting to the tracks he was headed toward the south side of the road at an angle but righted the car going towards the tracks and reached the north side of the street; then on the other side of the tracks there were some chuck holes and the car was in a bouncing motion from then on, a waving motion until it up-set; he did not think that he was pressing down on the accelerator after he hit the tracks, but the car hit some loose gravel along side of the road and he did not apply his brakes because the loose gravel would cause it to skid; the holes east of the tracks were not quite as large as those to the west; when his car struck them it was bounding and bouncing from side to side from the time he struck the first two holes; all of the time he was trying to right it and to keep it out of the ditches; it finally went over to the north side and upset. On cross examination, plaintiff testified that, at the time of the accident, he was traveling at such a rate of speed that he could have stopped within 60 feet of a discernible object but didn't stop.

Leo Pickens testified for plaintiff that East Madison Ave. in the vicinity of his home was a hard packed surfaced oil and gravel road; the black top surface was 25 to 30 feet wide; on each side there were ditches 8 to 12 inches deep, from 18 to 24 inches wide; the railroad crossing was the Chicago & Northwestern Railroad, with one set of tracks; there were two holes in the surface of the black top in front of his house; they were from 2 to 3 feet apart, just to the right of the center as one proceeded east on Madison; the largest hole was directly north of his front door, had been there since freezing and thawing weather in the spring; as time went on and traffic crossed it, the hole kept getting larger; it was about 3 or 4 feet north and south, about 3 feet east and west and measured 3 or 4 inches deep; it had 'about a two inch drop on the edges and then worked down in the center deeper, so that it was about four inches deep in the center and about two inches at the sides, and this 2-inch drop was a straight-down drop that occurred about the same way all around the edge of the hole'; the other hole was just east of this one 3 or 4 feet, measured about 5 feet each way and was not quite as deep as the first hole, but it had the same 2-inch drop all around the edge of the hole straight down; the street was like an ordinary graveled road, with little ruts and chuck holes here and there; 'it was sort of wavy going from Sixteenth on, it wasn't as bumpy from Sixteenth of Fourteenth', from Sixteenth to Fourteenth it was bumpy all the way, an ordinary traveled road; 'it was just an ordinary graveled road for a ways'; the waves were observable. On cross examination he testified that he was home at the time of plaintiff's accident, heard plaintiff's car hit the hole in front of his home, looked up and saw plaintiff's car, and, after it hit the hole, it was traveling at least 40 to 50 miles an hour.

Thomas Wheatley testified for plaintiff. He described the holes in the street in front of Pickens' home located them about as plaintiff and Pickens had done and described them as about the size that they had, but he did not specify the depth of them. In fact, the testimony of Pickens is the most complete of the three witnesses, as to...