Leonard v. City of Muscatine
| Decision Date | 02 April 1940 |
| Docket Number | 45035. |
| Citation | 291 N.W. 446,227 Iowa 1381 |
| Parties | LEONARD v. CITY OF MUSCATINE. |
| Court | Iowa Supreme Court |
Appeal from District Court, Muscatine County; D. V. Jackson, Judge.
Action at law against city for damages from injuries received in a fall upon a sidewalk. Opinion states the facts. From judgment for defendant, plaintiff appeals.
Affirmed.
Hugh E. Chance and Herbert G. Thompson, both of Muscatine, for appellant.
Robert K. Stohr and C. R. Stafford, both of Muscatine, for appellee.
Appellant Emma J. Leonard, brought this action against the city of Muscatine on account of injuries from a fall upon a sidewalk. Trial to a jury resulted in verdict and judgment in favor of defendant. Hence this appeal.
Appellant's petition recited that she stepped upon a portion of sidewalk which was raised and out of alignment with the rest of said sidewalk, and which was covered with snow and ice and which caused her to slip and fall, and that each of said conditions had existed for such time that the city should have discovered and remedied the same. She charged the city was negligent: (1) In failing to repair said sidewalk when it knew or should have known of the defect, and (2) in failing to remove the snow and ice after it knew or should have known said snow and ice had accumulated on said sidewalk.
The sidewalk consisted of sandstone slabs. At the place of the accident the roots of a tree had lifted the outside edge of the walk so that it sloped toward its center about 1 to 2 1/2 inches per foot. At the time and place in question the sidewalk was covered with smooth ice and upon the center was a pool of water about 1 1/2 inches deep beneath which there was ice.
To avoid this water appellant walked along the sidewalk near its outer edge. As she stepped alongside the pool she slipped on the smooth ice which covered the sidewalk and fell upon it. It was daytime. She did not see the ice upon which she stepped until after she fell. The record does not show what caused her to fall, but in the briefs her counsel say she slipped on the inclined portion of the walk which was covered with a thin coat of ice.
The errors assigned have to do with an instruction which required plaintiff, not only to show that the sidewalk was then " in a dangerous condition, but that such dangerous condition to wit: the rise and absence of alignment in the said sidewalk, together with a covering thereon of ice or snow was known to the city or had existed or continued for such a length of time as to enable the city officials to discover the defects and remove them by the exercise of reasonable and ordinary care and diligence."
Appellant contends the instructions should have permitted a recovery upon either negligence in failing to remove the ice or negligence in failing to correct the slant in the sidewalk. There is no merit in this position. The record shows the ice was unaffected by artificial causes, that it was smooth and slippery and in the same condition as when nature formed it upon the sidewalk. Manifestly, this condition in and of itself would not serve as a basis for actionable negligence. Citation of authorities upon this proposition is unnecessary. Nor was it claimed the fall was caused by any roughness or unevenness in the surface of the sidewalk itself. Here the complaint referred solely to the slope and, in the words of appellant's brief, " Appellant has never contended that the slant of the walk without the ice would necessarily have caused the injury."
Under the evidence and also under appellant's trial theory no recovery could have been allowed on either ground of alleged negligence without the concurrence of the other. C...
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