Lundy v. City of Ames

• Decision Date: 21 June 1926
• Docket Number: 37317
• Parties: H. H. LUNDY, Appellant, v. CITY OF AMES, Appellee
• Court: Iowa Supreme Court

209 N.W. 427

202 Iowa 100

H. H. LUNDY, Appellant, v. CITY OF AMES, Appellee

No. 37317

Supreme Court of Iowa, Des Moines

June 21, 1926

Appeal from Story District Court.--H. E. FRY, Judge.

Action to recover damages for personal injury claimed to have been suffered by the plaintiff by reason of a fall upon an icy sidewalk in the defendant city. The court directed a verdict in behalf of the defendant, and the plaintiff appeals.

Affirmed.

Lee & Garfield, for appellant.

J. Y Luke, for appellee.

FAVILLE J. DE GRAFF, C. J., and STEVENS and VERMILION, JJ., concur.

OPINION

FAVILLE, J.

The sidewalk in question runs north and south on the west side of one of the principal resident streets of appellee city. It appears that at one time the city fixed the grade for a sidewalk in front of a certain lot in said street, and the owner of said lot constructed a sidewalk in front of the same at the established grade. This grade was higher than that of the adjacent lot, and the sidewalk, which was constructed of brick, was made on a slope, at a drop of twenty-six feet in one hundred. The evidence shows that the ordinary slope in a sidewalk is a drop of seven feet in one hundred. The sloping portion of the walk is about four feet in length.

About a week before the accident, there had been a fall of snow, of about two inches. It appears that the snow had thawed and frozen, and that, upon the day of the accident in question, the slope referred to was more or less covered with ice from one to two inches thick, and that a portion of it at least was rough and uneven, and that children had been sliding on the ice down this slope. Appellant was proceeding northward on said sidewalk on the afternoon of January 26, 1924, between five and six o'clock, when he slipped and fell upon the sloping portion of said sidewalk, and suffered the physical injury which is the basis of this action.

Appellant as a witness testified that he was in the habit of passing over the said sidewalk nearly every day, and that he had been over the same sidewalk four times on the day previous; that it was on the direct route from his home to the business part of town. He testified that after the fall of snow the slope was not cleaned off, and that the ice on the sidewalk was from one to two inches thick; that the ice was uneven, and was rough and slippery on the slope, and had been in that shape for about a week; that the children had been sliding on the slope. and the sled marks could be seen; that, at the time of the injury, he was walking at an ordinary gait. On cross-examination. he first testified as follows:

"Q. You have seen this slope before? A. Yes, sir. Q. You had been over it at least four times the day before? A. Yes, sir. Q. You knew it was dangerous? A. It has been dangerous all the time. Q. When you went over it the day before, on January 25th, you considered this piece of sidewalk dangerous? A. Yes, sir. Q. What was you thinking about when you were going over that afternoon? A. I don't know that I thought about anything but getting home to get my supper. Q. You wasn't thinking about this sidewalk? A. No. sir. Q. All you was thinking about was getting home to get your supper? A. Yes, sir."

At the close of appellant's testimony, appellee moved for a directed verdict. Before a ruling on the motion was entered, appellant's attorney asked leave to open the case for the introduction of further testimony, which was granted, and thereupon appellant was called as a witness, and testified as follows:

"Q. Mr. Lundy, as you were walking home that evening, when you came to the north end of the Bowman sidewalk, did you realize that you had come to the end of that sidewalk, and had come to this drop in the sidewalk? * * * A. Well, I walked home that night on that 26th of January, 1924,--I walked home,--I walked that way that I thought I could get safe over there without--and not get hurt or anything. Q. When you came to this slope in the sidewalk, in this fall in the sidewalk, at the north end of the Bowman lot, did you realize where you had got to--did you know where you were? A. Yes, sir. * * * Q. What did you think about being able to pass over this place, this icy slope, that we have been talking about in this case, at the time and just before the time you first stepped on it? * * * A. I thought I could get over it safe. Q. Did you know how slippery that slope was that night, at the time you first stepped on it, on this slope? A. No, sir. Q. You had passed over this slope before, had you? A. Yes, sir. Q. And you never had fallen there before on the ice? A. No, sir."

On further cross-examination, the witness, among other things, testified:

"Q. You told us this morning that you knew this sidewalk was dangerous? A. Yes, sir. Q. And that you considered it dangerous? A. Yes, sir. Q. And that you was walking along not thinking about the sidewalk? A. Yes, sir. Q. That's what you told us this morning? A. Yes, sir. I was walking there--I just--I wasn't thinking so much about it. I thought I could get across safe. Q. You didn't tell us anything this morning about you thinking you could get across safe, did you? A. No, sir."

Notwithstanding any inconsistency in the evidence, it must be construed as a whole in the light most favorable to appellant, for the purposes under consideration. The question arises as to whether or not the court was justified in directing a verdict in behalf of appellee on the ground that appellant, as a matter of law, was guilty of contributory negligence. We have, then, the situation where appe...