Knote v. City of Des Moines

• Decision Date: 22 November 1927
• Docket Number: 38459
• Citation: 216 N.W. 52,204 Iowa 948
• Parties: GEORGE W. KNOTE, Appellant, v. CITY OF DES MOINES, Appellee
• Court: Iowa Supreme Court

216 N.W. 52

204 Iowa 948

GEORGE W. KNOTE, Appellant, v. CITY OF DES MOINES, Appellee

No. 38459

Supreme Court of Iowa, Des Moines

November 22, 1927

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.

Action for damages for personal injury to plaintiff, caused by stepping into a manhole at the market house maintained by said city. The trial court directed a verdict for the defendant, and the plaintiff appeals.

Affirmed.

James E. O'Brien, for appellant.

Reson S. Jones, Eskil C. Carlson, Chauncey A. Weaver, and Don G Allen, for appellee.

OPINION

PER CURIAM.

The city of Des Moines maintains a market house, arranged with booths or stalls, where produce is offered for sale to the public. The appellant was in the habit of visiting said market, not as a customer, but for the purpose of gathering refuse for his own use. He had visited the market for said purpose on various occasions. The market is arranged so that there are aisles and passageways where customers are expected to walk, and the public are not expected to, and do not, go behind the stalls or booths. On the day of the accident in question, the appellant came to the market house and was gathering garbage and refuse. He testified that he got some stuff from an old man, and that he told him he could have some more stuff in a barrel; and that appellant went to get the stuff in the barrel, and fell through the manhole the cover of which had been removed, a few moments before, by the janitor, for the purpose of throwing some kindling wood into the basement. On cross-examination, he said:

"I walked into the market, as I always do, from the north side of the stands to the entrance back there, where that stuff was. There were stands to the left and to the right. I walked down the aisle or thoroughfare where people were making their purchases. I walked down to this particular point, and turned in back of the stands. There were three or four people behind the stands when I walked in there. One of them they call Tom is a merchant there. I stopped and talked to the man that furnished me with stuff there for a few minutes, and got some stuff, and then he says, 'You can have what is in the barrel;' and I went back to get it, and went down through this hole before I got to the barrel. The hole was between me and the barrel."

The evidence shows that the manhole in question was usually kept covered by an iron cover that fitted properly thereon.

I. The trial court was warranted in sustaining appellee's motion for a directed verdict on the ground that the appellant was guilty of contributory negligence. The appellant was bound to at least use ordinary care to observe where he was going when he attempted to enter a place where the public were not expected or allowed to go, and where he was entering for purposes of his own.

II. It is contended that the court erred in not submitting to the jury the question of the appellee's negligence in permitting the manhole to be uncovered at the time the appellant fell therein. Appellant was not an...