Lush v. Incorporated Town of Parkersburg

• Decision Date: 11 July 1905
• Citation: 104 N.W. 336,127 Iowa 701
• Parties: CORNELIA LUSH, Appellant, v. INCORPORATED TOWN OF PARKERSBURG
• Court: Iowa Supreme Court

104 N.W. 336

127 Iowa 701

CORNELIA LUSH, Appellant, v. INCORPORATED TOWN OF PARKERSBURG

Supreme Court of Iowa, Des Moines

July 11, 1905

Appeal from Butler District Court.-- HON. CLIFFORD P. SMITH, Judge.

ACTION to recover damages for injuries sustained from a fall on a sloping approach from a street to a sidewalk, which was, as alleged, in a defective condition, due to the negligence of the defendant. On trial to a jury there was a verdict for defendant, and from the judgment on this verdict plaintiff appeals.-- Affirmed.

Affirmed.

Geo. M Craig and Courtright & Arbuckle, for appellant.

W. T Evans and Hemenway & Martin, for appellee.

OPINION

MCCLAIN, J.--

The allegation as to the negligence of the defendant was that the accident: "was occasioned wholly by the fault carelessness, and negligence of the defendant corporation, its officers and agents, for that the said approach upon which plaintiff slipped and fell was improperly and negligently constructed in such a way as to produce an abrupt, steep, and dangerous incline from the walk to the bottom of said approach, and was carelessly and negligently constructed, in that the planks were placed lengthwise, and in that no cleats or strips had been nailed across it to prevent one from slipping, or in that no measures had been taken by the defendant corporation, its officers or agents, to prevent the same from being and becoming dangerous to pedestrians."

The only evidence as to the approach to the sidewalk being dangerous, and as to the negligence of the defendant in allowing it to remain in a dangerous condition, was to the effect that it should have been provided with cleats or strips nailed across it. The approach was of pine planks laid lengthwise, five feet long, and it was eight and one-half inches higher where it joined the sidewalk than where it joined the street. The slope of the approach was therefore one foot in seven, and there is no evidence whatever that this slope in itself rendered the approach dangerous, or that the town was negligent, in view of all the circumstances, in constructing the approach at such a slope. We do not think that the jury would have been justified in finding that as a matter of fact it constituted negligence on the part of the town to construct the approach at this slope, and the court therefore, did not err in failing to submit to the jury any question as to the negligence of the town, save that...