Meier v. Town of Cushing

• Decision Date: 12 January 1955
• Docket Number: No. 48589,48589
• Citation: 68 N.W.2d 74,246 Iowa 441
• Parties: Lydia MEIER, Appellee, v. TOWN OF CUSHING, Appellant.
• Court: Iowa Supreme Court

Page 74

68 N.W.2d 74

246 Iowa 441

Lydia MEIER, Appellee, v. TOWN OF CUSHING, Appellant.

No. 48589.

Supreme Court of Iowa.

Jan. 12, 1955.

Warren G. Dunkle, of Gill & Dunkle, Sioux City, for appellant.

Ed H. Campbell, Jr., of Campbell & Campbell, Battle Creek, for appellee.

OLIVER, Justice.

On the evening of November 8, 1952, plaintiff was riding in a 1940 Ford automobile driven by her husband, in the town of Cushing, north, on a graveled street named County Road. Second Street intersects County Road from the east. Evidence for plaintiff was that as the Ford car approached and traversed this intersection at about 15 miles per hour it met an automobile with blinding headlights and traveled near the right edge of the traveled part of County Road. In the intersection the Ford struck a bump, or ridge, then dropped into a hole in the street, bounced at an angle toward the northwest and was brought to a stop in about 20 feet. Plaintiff was thrown against the top of the car and suffered a compressed fracture of the twelfth dorsal vertebra. She brought this action for damages against the town, based upon its alleged negligence in failing to maintain the street in a reasonably safe condition. Trial to a jury resulted in judgment for plaintiff for $1,500. Defendant has appealed.

I. Over defendant's objections the court permitted plaintiff's husband to testify the car hit the bump and the hole in the street. Defendant predicates error upon this, for the stated reason the witness did not, at the time, see what the car hit and did not inspect the intersection until two days later. Defendant argues: 'What he found out after two days was inconsequential. The remoteness of time is fatal to the testimony.'

We hold this delay did not render the testimony inadmissible. There is no suggestion the condition of the intersection had changed. Nor were questions as to what happened objected to as calling for conclusions, as distinguished from composite facts. What effect, if any, the delay had on the weight to be given this testimony is another question. That was for the jury.

II. Defendant contends the court should have sustained its motion for directed verdict on the ground plaintiff failed to prove defendant had notice of the defects in question, prior to November 8, 1952. This contention is not well founded. There was evidence the condition had existed for some months. This was sufficient to require that the question of constructive notice to the city be submitted to the jury. Parks v. City of Des Moines, 195 Iowa 972, 191 N.W. 728.

III. Error is assigned to the order overruling defendant's motion for directed verdict based upon the contention the evidence was insufficient to prove the town was negligent in failing to maintain the street in a reasonably safe condition. In other words, it is contended the defects in the street were, as a matter of law, insufficient to constitute negligence. This is the real question in the case.

Second Street intersects County Road from the east but does not extend west of the intersection. County Road is 66 feet wide and the graveled and traveled part is 27 feet wide. Across the north side of the intersection is a cement crosswalk. An engineer who examined the intersection testified the hole in the surfaced part of the street was near the east side of the surfaced part and about 1 or 1 1/2 feet south of that crosswalk. The hole was elliptical or oval in shape, was about 5 by 7 feet and measured 6 inches deep. A hard gravel ridge about 1 foot high ran from the west edge of the gravel on County Road in a quarter circle. At the east edge of the graveled part of County Road this ridge was about 20 feet south of the east and west crosswalk on the north side of the intersection. The engineer expressed the opinion the relatively heavy travel from the north which turned east at the intersection 'has dished that road and thrown the gravel up into this so-called ridge and made this hole. It is also my opinion that if the walk had not been in there that the hole probably would not have been as bad.'

Defendant cites Humphrey v. City of Des Moines, 236 Iowa 800, 20 N.W.2d 25, 27, in which the holes in the pavement were 3 or 4 inches deep and the trial court directed a verdict for defendant on the ground of contributory negligence. The decision quotes from Peterson v. Chicago M. & St. P. R. Co., 185 Iowa 378, 386, 170 N.W. 452, 455:

"* * * An elevation of from two to three inches between the road surface and the top of the planks does not tend to show negligence, either in the construction or maintenance of the crossing."

The Humphrey case quotes also from Gable v. Kriege, 221 Iowa 852, 860, 267 N.W. 86, 90, 105 A.L.R. 539:

"A hole or depression of the extent that plaintiffs' testimony shows, 3 or 4 inches deep at its deepest point and not abrupt but cupped out by travel, would not render a highway unsafe for travel in the ordinary and reasonable manner of traveling thereon."

The Humphrey decision then states:

'Applying the foregoing pronouncements to the facts herein, it would appear that, under our holding in the Peterson case, supra, the fact that the holes complained of had a 2-inch drop around the edge would not render them so dangerous to vehicular travel as to constitute actionable negligence. And, under our holding in the Gable case, supra, the fact that the maximum depth of the larger hole was 4 inches would not support a claim of actionable negligence on the part of the city.'

However, in Beach v. City of Des Moines, 238 Iowa 312, 336 to 342, 26 N.W.2d 81, 94, 95, 96, this court pointed out that the height of an elevation or the depth of a depression in a public sidewalk are not decisive determinants on the question of negligence in maintaining the same. Many supporting authorities are cited. Among these is Baxter v. City of Cedar Rapids, 103 Iowa 599, 606, 72 N.W. 790, 792, which states:

'* * * These will vary with the circumstances of different cases, and whether the municipality is liable for a defect in its streets or walks will, as a rule, be a question of fact, to be...