Mathews v. The City of Cedar Rapids

• Decision Date: 03 June 1890
• Citation: 45 N.W. 894,80 Iowa 459
• Parties: MATHEWS v. THE CITY OF CEDAR RAPIDS et al
• Court: Iowa Supreme Court

45 N.W. 894

80 Iowa 459

MATHEWS v. THE CITY OF CEDAR RAPIDS et al

Supreme Court of Iowa, Des Moines

June 3, 1890

Decided May, 1890.

Appeal from Linn District Court.--HON. J. H. PRESTON, Judge.

ON the evening of October 5, 1888, the plaintiff was walking along Second street, in the defendant city, and was injured by falling through the walk close to and in front of a store-building owned at the time by defendant Mansfield. The opening through which plaintiff fell is a part of what is known as an "area way," quite common in cities, and designed to admit light and air to the basement. It was about five and one-half feet in length, and about fifteen or sixteen inches in width. The length of the opening was along the front of the building. Of the width of the opening, about five inches was in the street or sidewalk proper; the balance of the width being back of the lot line, and, in a sense under the building. That is, the construction of the window of the building is such that its base is some three feet above the level of the walk, and over the part of the opening not in the sidewalk. The depth of the opening or hole into which the plaintiff fell is about nine feet. The opening being in the area way, was not a part of the walk used in passing along the street. The opening in question was in front of a large show window brilliantly lighted with electric lights, and in which was an attractive display of goods. It was to observe this display that the plaintiff turned from his course along the walk, and, going to the window, fell through the opening. A more minute description of the surroundings need not be given. Plaintiff seeks to recover because of the negligence of the defendants in the construction of the walk or area way. For the purposes of our consideration, the answers may be regarded as denials barring, perhaps, some admissions of defendant Mansfield which may be noticed in the opinion. There was a verdict and judgment for the defendants, and the plaintiff appeals.

REVERSED.

Hormel & Harrison, for appellant.

C. J. Deacon, I. N. Whittam and Mills & Keeler, for appellees.

OPINION

GRANGER, J.

I.

An exception is taken to instruction number 10 given by the court; and we first notice that, as it seems to be the principal "bone of contention" in the case. Before quoting the instruction, it is proper to say it is undisputed in the case that the opening through which plaintiff fell was in full view of one approaching the window, and if plaintiff, as he approached the window, had looked for defects at that place, he must have seen it. It may be said as a fact in the case that, after he turned to go to the window he went until he fell, without any thought as to danger, looking only at the attractions in the window. In view of these facts, the court gave the following instruction: "10. Plaintiff had the right to pass along said street, and it was the duty of plaintiff, in passing along said walk, to act as an ordinarily prudent man would, and walk as an ordinarily prudent man would walk. He must use his eyes, and look where he was walking, and avoid all obstacles which were dangerous in their character, and which were plainly visible, and not obscured. He must act carefully and prudently, considering all the circumstances surrounding him. If he did so, and met with an accident which was caused by the negligence of the defendants, then he can recover for the damages sustained. If he did not use such care and prudence, and met with an accident, then he cannot recover, although the defendants may also be negligent."

The precise complaint is made to the italicized portion of the instruction. After a careful consideration of the authorities cited; and the reasoning given in its support, we think it erroneous. The instruction has reference to the contributory negligence of the plaintiff; and, if the italicized portion is omitted, the instruction seems to express very fairly the rule as to such negligence. Rusch v. City of Davenport, 6 Iowa 443; Cotes v. City of Davenport, 9 Iowa 227; Little v. McGuire, 43 Iowa 447. The rule is of almost universal recognition. It is now proper to inquire to what extent the italicized portion would affect or change the rule. We think, reduced to fewer words, the instruction means this: A person walking on a public street must, to avoid accidents, act as a reasonably prudent and careful man would act, considering all the circumstances surrounding him. He must look where he is walking, and avoid all obstacles which are dangerous and plainly visible. The conclusion from the instruction is that a reasonably prudent man will avoid all obstacles in his pathway that are plainly visible. The effect of the instruction, then, was to say to the jury that, if the opening into which the plaintiff fell was plainly visible, he could not recover; and a further effect was to determine the case, for the plaintiff admitted in his testimony that by looking he could plainly see the opening, and as a consequence the question was made one of law, and not one of fact for the jury. It is true the question of negligence is sometimes one of law, but it is not at all times, and the rule to determine the question is: If, from the undisputed facts, but one conclusion can reasonably be drawn, then the question is one of law; but if, under the facts, different minds might reasonably reach different conclusions, it is a question of fact for the jury. Milne v. Walker, 59 Iowa 186, 13 N.W. 101; Whitsett v. Railway Co., 67 Iowa 150. See, also, Bennett v. Insurance Co., 39 Minn. 254; 39 N.W. 488; Railway Co. v. Watson, 15 N.E. 824; Barnes v. Sowden, 119 Pa. 53, 12 A. 804.

Then to the test: The plaintiff was passing along a well-lighted street. A brilliantly lighted show window, with an attractive display of articles, arrested his attention. He turned, and approached the window. There was nothing above the surface of the walk to obstruct his approach or indicate danger. Would all reasonable minds concur in the opinion that in approaching such a window a person must so far anticipate danger as to look where he walks, to know if there are openings into which he might step? In this case the plaintiff turned, and walked with his eyes constantly on the exhibits in the window, and did not see the opening until he fell. Would all say that in so doing he was negligent? In observing the articles, he was answering the manifest design of their being placed there. As placed, they were a...