Mardis v. City of Indianola

• Decision Date: 15 October 1940
• Docket Number: 44967.
• Citation: 294 N.W. 279,229 Iowa 176
• Parties: MARDIS v. CITY OF INDIANOLA.
• Court: Iowa Supreme Court

294 N.W. 279

229 Iowa 176

MARDIS v. CITY OF INDIANOLA.

No. 44967.

Supreme Court of Iowa.

October 15, 1940

Appeal from District Court, Warren County; Norman R. Hays, Judge.

Action at law against city for damages from personal injuries caused by fall upon an alleged icy and defective sidewalk. Opinion states the facts. From judgment against plaintiff upon directed verdict, plaintiff appeals.

Affirmed.

J. O Watson, Jr., of Indianola, O. M. Slaymaker, R. E. Killmar and D. D. Slaymaker, all of Osceola, for appellant.

M. D Hall, of Indianola, and Reson S. Jones, of Des Moines, for appellee.

OLIVER, Justice.

Action at law by Cora Mardis against City of Indianola, Iowa, for damages from personal injuries resulting from a fall upon a sidewalk on November 20, 1937, at about 1:30 P.M. The sidewalk was of cement, four feet in width, and ran along the south side of a residential street. At the time plaintiff was going from her home to the business section of the city and was walking west at a point immediately north of a house owned by Pearl Warthen. There had been a three-inch fall of snow on the morning of November 18. Thereafter to the time of the accident the weather bureau records show that the temperature varied between thirty degrees above zero and eight degrees above zero, Fahrenheit. Plaintiff testified that the only portion of the sidewalk in front of the Warthen property from which the snow had been cleared was a somewhat irregular strip or path about ten inches wide, south of the center of the walk. Apparently, a shovel had been pushed along this east and west strip, thus pushing the snow to each side of it. As plaintiff walked along said cleared path she saw in the path a few feet ahead of her a broken place in the sidewalk filled with crushed snow and ice and fragments of cement, and noticed that the tracks in the snow and ice indicated that some pedestrians had walked through this place while others had gone around it on the parking to the north. At this point she was alongside and south of a long irregular crack or break in the sidewalk which ran in a general east and west direction near its center, parallel to the cleared pathway. The sidewalk had for some years been thus cracked and broken. This crack varied in width up to an inch or more and was filled with grass which had grown to several inches in height. The sidewalk on the south side of this crack had raised from one to three inches so that along the north edge of the crack the sidewalk was abruptly lower than along the south edge of said crack. Plaintiff testified the snow on the sidewalk made its surface on each side of the crack appear to be even and that she did not see the crack in the walk. However, she saw the grass in the crack although the grass was partly covered with ice. At different places in her testimony plaintiff described the ice as slick, sloping down with frozen heel tracks and footprints, as being uneven and as being chunked up.

To avoid the broken place in the sidewalk in the path ahead, plaintiff intended to walk around it on the parking as some others had done. Starting to do this, she took one step to the north with her right foot and tried to step over the crack. Instead she stepped upon the grass upon the crack.

There was ice in the grass. " It also sloped down and I stepped on it and my feet went out and I fell down." " My foot came in contact with the ice and concrete. I stepped on the grass that was icy, and then the concrete, of course, was so raised that it threw me back."

The petition alleged the city was negligent in failing to keep the sidewalk in repair and in failing to remove the snow and ice therefrom. At the conclusion of the evidence upon motion of the defendant, the court directed a verdict against the plaintiff and judgment was rendered thereon. Plaintiff has appealed.

One ground of the motion for directed verdict was that the evidence showed plaintiff was guilty of contributory negligence as a matter of law. The record upon this point discloses some unusual features.

In June, 1936, plaintiff had suffered serious injuries in a fall upon this same sidewalk only 2 or 2 1/2 feet west of the place where she fell in November, 1937. At the January, 1937, term of District Court she had instituted suit against Pearl Warthen, the owner of said property, for damages on account of injuries received in her first fall, stating in her petition:

" * * * said sidewalk * * * had separated and broken near the center thereof as to leave a space an inch or so in width, and this was several inches in depth, and on the 30th day of June, 1936, grass had grown up therein so that the space between the said cement and the hole therein was obstructed and could not be seen or observed as a person was walking over the same. That on such date, * * * plaintiff * * * stepped in the said hole and space hereinbefore referred to, and the heel of her shoe caught therein and held and she was thrown to the cement sidewalk in such a way that the fourth vertebra on the right side of her body was broken, crushed and dislocated."

In June, 1937, one year after her first fall and five months before the second fall plaintiff herself took a number of photographs of the sidewalk. The record does not show whether or not these pictures were taken in preparation for the trial of the suit against Warthen. In any event seven of said photographs, Exs. A to G, were introduced in evidence in the case at bar. Plaintiff testified the walk was in exactly the same condition in November, 1937, as shown in the photographs, except that there was snow on it in November. In Ex. A, the camera pointed west. Ex. B was taken at another angle and closer up. Ex. C is a side view of the walk taken from the north. Ex. D is a close-up of the crack and walk from...