Appeal
from Pottawattamie District Court.--HON. A. B. THORNELL
Judge.
ACTION
at law to recover damages for personal injuries resulting to
plaintiff through a fall on one of the streets of the
defendant city. Trial to a jury, verdict and judgment for
plaintiff, and defendant appeals.
Affirmed.
Mayne & Hazelton for appellant.
Harl & McCabe for appellee.
Where
although the accumulation of ice or snow has been from purely
natural causes, it remains upon the sidewalk in a rounded
uneven or sloping form, so as to increase the danger of
accident and create a condition entirely distinct from mere
slipperiness by reason of being wet or covered by ice and
snow, there is imposed upon the city the obligation of
removing such an obstruction and not to expose its citizens
to this new and unusual peril.
Where,
by reason of the manner of constructing the walk or the
surrounding conditions, the walk accumulates an unusual
amount of snow or ice, or where the snow and ice thus allowed
to remain upon the walk is not as it falls from the clouds,
from purely natural causes, there is like obligation upon the
city to remove the obstruction (after notice, either express
or implied), and liability for negligence in failure to
perform that duty.
Broberg
v. Des Moines, 63 Iowa 523 (50 Am. Rep. 756); Cook v.
Milwaukee, 24 Wis. 270 (1 Am. Rep. 183); Collins v.
Council Bluffs, 32 Iowa 324 (7 Am. Rep. 200); Cosner
v. Centerville, 90 Iowa 33; Stanton v.
Springfield, 94 Mass. 566; Pinkham v.
Topsfield, 104 Mass. 78; Fitzgerald v. Woburn,
109 Mass. 204. Adams v. Chicopee, 117 Mass. 440;
Hughes v. Lawrence, 160 Mass. 474; Decker v.
Scranton City, 115 Pa. 241.
Where
there was a ridge of snow and ice on the sidewalk, which had
been there for a week before the accident, and was formed, in
part, of snow that had fallen more than two weeks before,
with no attempt to remove it, the cause should be submitted
to the jury.
Keane
v. Waterford, 130 N.Y. 188; Boulder v. Miles, 9
Colo. 415.
OPINION
DEEMER, J.
Appellee
while passing along and over a sidewalk on the north side of
Washington avenue, a much-frequented street in
the defendant city, slipped and fell upon the pavement, which
was covered with ice and snow, and sustained a severe and
complicated fracture of the arm and elbow. He brought this
action for damages, alleging that the defendant was negligent
in this: "That many days prior to the twenty-fourth day
of February, 1894, occurred a fall of snow, which was
suffered by the defendant corporation to lie as it fell upon
said sidewalk. Later the weather became warm, and the snow,
converted into slush, was still permitted to remain upon the
walk, and in that condition was frozen hard and smooth. That
the walk in question, at and near the point of injury, was so
located as to receive not only the snow that naturally fell
in time of storm, but as well received drainage from the
ground lying above it, with no means provided for the escape
of the water and slush that might come upon it from above;
and that the snow in question, converted into water and slush
by the thawing referred to in the petition, not only
accumulated upon said sidewalk, but there was, as well, a
further accumulation, by reason of descent of water and slush
from the higher ground, and this was not only permitted to
accumulate, which accumulation occurred on the eighteenth day
of February, 1894, but to remain on said walk until after the
accident sustained by plaintiff. Plaintiff shows that the
walk in question was not built on a flat surface, but was
convex, the center of the walk being two or three inches
higher than the sides, and that by reason thereof, the ice
complained of did not present a flat surface, but stood at an
angle; and, yet further, that by reason of the passage of
many pedestrians, on the eighteenth of February and prior,
while the snow upon said walk was in form of slush, the same
became very irregular and rough in formation,
though smooth and glossy upon the surface rendering passage
over it in the highest degree dangerous and difficult, and
that on the evening of February 18, the weather suddenly
turned cold, freezing said water and slush in said position
and manner." Evidence was adduced tending to support the
allegations of this petition, and the court below gave the
following instructions with reference thereto: "Now, it
may be stated as a general rule, that the mere fact that snow
or sleet has fallen upon the sidewalk from the clouds, and
thereby rendered the sidewalk slippery and difficult to pass
over, would not make the city liable therefor, even though
such ice and snow should remain upon the walk for an
unreasonable length of time after the officers of the city,
whose duty require them to look after such matters, had
notice of its existence, or after they, in the exercise of
reasonable care in performing their duties, ought to have
known of its existence; but this rule relates only to the
natural conditions resulting from rain or sleet falling and
freezing upon the walk, or snow accumulating upon the walk
from natural causes. Where, after such ice or snow has thus
accumulated, if by reason of person traveling over same, or
if, from other causes, as from ice or snow thawing and
flowing down upon the walk from other lands, the surface of
the snow or ice upon the walk becomes rough, or ridged, or
rounded in form, or lies at an angle, or slanting, to the
plane surface of the walk, so that it...
