McLaury v. City of McGregor

• Citation: 54 Iowa 717,7 N.W. 91
• Parties: MCLAURY v. THE CITY OF MCGREGOR.
• Decision Date: 21 October 1880
• Court: United States State Supreme Court of Iowa

54 Iowa 717

7 N.W. 91

MCLAURY

v.THE CITY OF MCGREGOR.

Supreme Court of Iowa.

Filed October 21, 1880.

Appeal from Clayton circuit court.

Action to recover for personal injuries, alleged to have been sustained by reason of a defective street. There was a trial without a jury, and judgment was rendered for the defendant. The plaintiff appeals.L. O. Hatch, for appellant.

J. O. Crosby and H. A. Odell, for appellee.

ADAMS, C. J.

The essential facts, as found by the court, are that the plaintiff, while walking upon one of the streets of McGregor, fell from the sidewalk into a ditch and received severe injuries; that the ditch had been caused by successive freshets; that it was about four feet deep, and its bottom covered with rock; that it was so near the sidewalk that if a person stepped off he would necessarily fall into it; that no guard or barrier was erected to keep persons from stepping off; that the plaintiff, who was at the time of the accident about 78 years of age, was walking upon the sidewalk in the edge of the evening, and, without observing the limits of the sidewalk, slipped off and fell. It was found that the ditch was previously known to the plaintiff; that the sidewalk was five feet wide, and was discernible notwithstanding the darkness.

To these facts the court added what it called conclusions of fact, and which it stated as follows: “ First, that the walk in question was a reasonably safe one for the traveling public where it was located, and that the city was not negligent; second, that the plaintiff, in passing along the walk at that time of night, with full knowledge of the surroundings, and without keeping in mind the necessity of being careful, and without using care, was negligent, and that her injuries were caused thereby.” Where the facts are undisputed the question of negligence becomes one of law. Moore v. Westervelt, 1 Bosw. 375. The court below included to some extent what appears to us to be a conclusion of law in what it calls a conclusion of fact. But this at most is only a slight informality. Whatever is properly a conclusion of law should be so treated by us, and reviewed accordingly. The character and location of the ditch, the character of the sidewalk, and the degree of darkness are distinctly found, and by this finding we are bound.

Whether the conclusion of the court is correct, that the sidewalk was reasonably safe for the traveling public, we need not determine. Possibly it could not be...