Johnson v. City of Ames

• Decision Date: 16 May 1917
• Docket Number: 30962
• Citation: 162 N.W. 858,181 Iowa 65
• Parties: MARGARET A. JOHNSON, Appellee, v. CITY OF AMES, Appellant
• Court: Iowa Supreme Court

162 N.W. 858

181 Iowa 65

MARGARET A. JOHNSON, Appellee, v. CITY OF AMES, Appellant

No. 30962

Supreme Court of Iowa, Des Moines

May 16, 1917

REHEARING DENIED SATURDAY, SEPTEMBER 29, 1917.

Appeal from Story District Court.--E. M. MCCALL, Judge.

ACTION for damages consequent from falling because of a defective sidewalk resulted in a judgment for plaintiff. The defendant appeals.

Reversed.

John Y Luke, for appellant.

R. E Nichol, C. G. Lee and I. R. Meltzer, for appellee.

LADD, J. GAYNOR, C. J., EVANS and SALINGER, JJ., concur.

OPINION

LADD, J.

The governor was to speak at the park in Ames in the afternoon of July 28, 1914. Mrs. Lou Johnson, a relative of plaintiff's husband's who had died shortly before, and Evelyn Valen, daughter of a sister-in-law of plaintiff's, telephoned plaintiff to meet them down town and attend a band tournament which appears to have preceded the address. She did so and, after waiting a while, according to her story:

"The parade with Governor Clarke went by, and it seemed like the whole town started for the park. Everybody was moving towards the park in kind of a procession. When we came to the Story County Bank, there was an awful jam, so it divided, and part of the crowd went up Main Street and some went up Douglass Avenue. I went up Douglass Avenue with Dora and Evelyn. We went a whole block north and then turned east at Fifth Street, and we were walking along with the whole crowd; of course, there was an awful jam around us, pushing along, and I stepped into a bad place in the walk and dropped onto my knees in a twist--I didn't drop straight down--I didn't fall sprawled out, but just dropped on my knees, and I was hurt so bad I didn't have much recollection of anything more for--oh, a little while, a few minutes, not long."

In this action she claims damages, alleging that:

"There was a depression in the sidewalk from two to four inches deep at the place where she fell, and there were broken pieces of concrete in said depression and around the edges thereof. And it is her belief that she stepped partly upon a broken piece of concrete and slipped therefrom; the same caused her to fall. That she was walking along said walk, immediately following some other pedestrians, and was unable to observe said defective condition of the walk, and did not know of the same, until she slipped and fell."

She also alleged notice and want of care on the part of the city and freedom from fault on her part. Defendant contends that the evidence failed to show negligence on the part of the city, and that the judgment should be reversed on that ground. The defect, such as it was, had existed for several years, and it was for the jury to say whether the city was charged with notice of its existence. Evidence tended to show that Fifth Street was one of the two most traveled streets between the business portion of the city and the city park; that there was a cement walk, along which plaintiff and her companions were walking; that the blocks in the cement walk were about 4 feet square and about 4 inches thick; that there was a layer on top, one half of an inch to an inch thick on the concrete below, and that this layer had been peeled off. Thus far, there seems to be no controversy. But several witnesses in behalf of defendant testified that this layer was all that had been removed, and that the surface of the concrete below was smooth. On the other hand, witnesses in behalf of plaintiff testified that, on each side of the depression, the fall was abrupt for about an inch, and that the concrete was worn down toward the center of the square, extending its entire width, depth being estimated at from 2 1/2 inches to 3 inches. Hart testified that this center was 2 1/2 to 3 inches deep, and was through to the ground, though the water may have washed dirt in, and that:

"Close to the walk the surface was broken off, and after the surface was off, there was a kind of a sand or cement foundation, and that right in the center of the walk, or the broken part of the walk, it was worn quite a little deeper, and I should judge about a foot from the edge of the walk the surface was off, and for about a foot to the center of that it was worn through to the ground."

Mrs. Russell thought more than the top layer gone, and estimated the cement removed to a depth of 2 or 3 inches. Haines swore to a like depth, and that after rains he had walked that way in the dark and stepped in water settled there, and that it ran over the tops of his low shoes. Kooker estimated the depth at 2 1/2 to 3 inches. The plaintiff and her companions thought the depth 2 1/2 to 3 or 3 1/2 inches.

Attention has been directed to enough evidence to show that there was room for the jury to reject the evidence adduced in behalf of the city, and find that more than the top layer had been removed, and that the concrete had been worn or taken away to the depth of 2 1/2 inches or slightly more at the center of the square. Though some evidence indicated that there had been broken pieces, these appear to have been removed or ground down in travel so that, at most, it might have been found that the surface of the concrete was "rough," without any indication of the nature of such roughness nor of the pieces or particles of concrete lying in the depression. In deciding whether a case was made for the jury, we are to assume that the concrete had been broken or worn at the center so that the depression was as much as, but not to exceed, 3 inches deep. No case precisely like this has been presented to this court. The depth of the hole in the sidewalk considered in Platts v. City of Ottumwa, 148 Iowa 636, 127 N.W. 990, was not stated, the court merely saying that:

"It is shown beyond all reasonable doubt that there was a depressed place or hole in the walk, and it was of such depth or extent that a person stepping into it unexpectedly was liable to fall or be thrown down."

In Overton v. City of Waterloo, 164 Iowa 332, 145 N.W. 889, a piece of the walk about 12 inches wide and 18 inches long and 3 inches deep was out of a cement sidewalk, but negligence on the part of the city was not questioned. In Cooper v. City of Oelwein, 145 Iowa 181, 123 N.W. 955, the edge of a block was from 1 1/2 to 1 3/4 inches higher than the surface next to it, and the district court submitted to the jury the issue as to the city's negligence. Whether allowing a street to be in that condition would constitute negligence was not considered, as judgment had been entered for defendant. In Patterson v. City of Council Bluffs, 91 Iowa 732, 59 N.W. 63, at the point where a new brick walk joined an old plank walk there was a perpendicular offset of nearly 4 inches, and with reference thereto the court said:

"That such an offset is more or less dangerous is amply demonstrated by the accident to the plaintiff. Whether such an offset is so dangerous as that to permit it is negligence depends upon the surrounding circumstances, such as the proximity of lights, the amount of travel, and the like. We think it was for the jury to determine, in the light of the circumstances, whether the city was negligent in permitting this offset."

See, also, Hanson v. City of Anamosa, 177 Iowa 101, 158 N.W. 591.

The decisions elsewhere are conflicting. In City of Key West v. Baldwin, (Fla.) 67 So. 808, the fall in the walk was 4 or 5 inches, and the issue of negligence was held to be for the jury. In Bieber v. City of St. Paul, (Minn.) 91 N.W. 20, where it appeared that the walk was constructed of hexagonal cement blocks, one of which had become out of level, about 6 inches from a stone step leading to the entrance of a store, the outside was depressed an inch and a quarter, and the inside a little less, and, as the street was much used, the question of the defendant's negligence was held to have been for the jury. But Lewis, J., dissenting, observed that:

"One may count such depressions, projections, and inequalities by the hundred all along the business as well as the residence streets in this and other cities. Common prudence never has required any such limit as is set down by the decision in this case. The time may come when the people will require that degree of perfection in respect to streets and walks which is adopted in public parks or in the private grounds of the wealthy, but, according to the standard now prevailing, by common consent the wayfarer should assume the responsibility and risk of danger to be encountered in walking into the yawning gulf of destruction presented by a cement block in the sidewalk depressed on one side to the extent of an inch and a quarter."

The case is an extreme one, and, notwithstanding the peculiar circumstances, seems contrary to the current of authority. See Terry v. Village of Perry, (N. Y.) 92 N.E. 91; Haggerty v. City of Lewiston, (Me.) 50 A. 55; Burroughs v. City of Milwaukee, (Wis.) 86 N.W. 159; Isaacson v. City of Boston, (Mass.) 80 N.E. 809.

The decisions on defects, such as holes or depressions in walks will be found collected in notes to Elam v. City of Mt. Sterling, (Ky.) 20 L.R.A. (N.S.) 512, 634; City of Lexington v. Cooper, (Ky.) 43 L.R.A. (N.S.) 1158; and Mayor, etc., v. Crook, (Miss.) L.R.A. 1916 A, 482, 490. An examination of them discloses that the great weight of authority is against the inference of neglect on the part of the defendant city. Thus, in Beltz v. City of Yonkers, (N. Y.) 42 N.E. 401, the depression was about 2 feet 6 inches long by 7 1/2 inches wide, and 2 1/2...