Marshall v. City of Belle Plaine

Decision Date21 October 1898
Citation76 N.W. 797,106 Iowa 508
PartiesMARSHALL v. CITY OF BELLE PLAINE.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Benton county; G. W. Burnham, Judge.

Action at law to recover for personal injuries alleged to have been caused by negligence on the part of the defendant. After the plaintiff had submitted his evidence, the district court sustained a motion to direct a verdict for the defendant, a verdict was directed and returned accordingly, and judgment was rendered in favor of the defendant for costs. The plaintiff appeals. Affirmed.Tom H. Milner, for appellant.

J. J. Mosnat and L. E. Cox, for appellee.

ROBINSON, J.

The defendant is a city of the second class. On the 14th day of January, 1895, at about 9 o'clock in the evening, the plaintiff fell in a street of the defendant, and received injuries which prevented him from following his vocation, that of a barber, for several weeks. The accident occurred on an apron which led from a sidewalk to a street crossing in a part of the city which was devoted to business and much frequented. The apron was 4 feet in width, and 7 feet 3 inches in length, with a fall of 14 inches. It was made of four boards, each of which was 12 inches wide, placed lengthwise, without cross cleats on the upper surface to keep pedestrians from slipping. At the time of the accident the apron was covered with a coating of snow and ice, and was slippery, and the plaintiff fell in consequence of slipping on it. The plaintiff claims that the defendant was negligent in permitting snow and ice to accumulate and remain upon the apron, and that the accident was caused by that negligence and negligence in the construction of the apron. The answer of the defendant contains a general denial.

At the time of the accident the plaintiff was 60 years of age. He wore boots without rubbers. He was familiar with the street crossing, including the apron, and used it frequently, although he does not recollect whether he had passed over it before on the day of the accident. There had been some ice and snow on the apron for several days, and in the morning of the day on which the accident occurred, or the night before, rain and sleet had fallen, and the sidewalks were slippery. The plaintiff knew that fact, and states that he knew that the crossing where he fell was in bad condition and slippery. He knew it was sloping, and that it was not supplied with cleats, and consequently he must have known that it would be dangerous for him to attempt to pass over it. He could have passed around it easily, and thus have avoided the danger, but it did not occur to him to do so, and he did not give the apron any thought, but fell the moment he stepped upon it. He does not claim to have used any care to avoid the danger, and it is clear that he did not do so. He was carrying a pail and conversing with a companion when he stepped upon the apron, but there was nothing in the conditions then existing which would naturally and properly so absorb his attention as to withdraw it wholly from the dangers to which he was exposed. The conclusion which must inevitably be drawn from the undisputed facts is that the accident was due, in...

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