Murphy v. City of Waterloo
| Decision Date | 16 July 1963 |
| Docket Number | No. 51031,51031 |
| Citation | 255 Iowa 557,123 N.W.2d 49 |
| Parties | Vicki MURPHY, a Minor, by Elmer Murphy, her father and next friend, and Elmer Murphy, Appellee, v. CITY OF WATERLOO, Iowa, Appellant. |
| Court | Iowa Supreme Court |
Charles J. Pickett, Waterloo, for appellant.
Kildee, Keith, Gallagher & Lybbert, Waterloo, for appellee.
This is an action for damages against defendant city. Vicki Murphy was a twelve year old girl in 1959. When standing on a sidewalk on Edwards Street in Waterloo she was violently pushed from the rear by a five year old boy. She was about 4 feet from Virden Creek, which was 6 feet deep at the point where it connects with the Waterloo storm sewer system. She was pushed into the creek; struck her head on some cement blocks at the bottom of the creek, and sustained a concussion of her skull. The jury rendered verdict in her favor in the amount of $10,000, and rendered a verdict for her father for hospital and doctor bills paid by him in the amount of $736.80. Defendant appealed.
1. For many years a creek tunnel existed under Edwards Street in defendant city. The tunnel crossed under the street at an angle, extended several feet south of the street and connected with said Creek. A vertical wall had been built by the city on each side of the creek connecting with the southern end of the tunnel. The area between the sidewalk and the creek was even with the sidewalk and at the point where Vicki fell the creek was partially in the Murphy yard.
Although the city did not have title to this strip of land, or the land on which the tunnel extension and walls were constructed it maintained and controlled the tunnel and creek walls. In 1947 and 1948 under the inspection, supervision and control of the city, the creek and its walls had all been repaired and re-built by defendant city. Prior to such time there was a guard rail between the sidewalk and the drop off, but it fell down when one of the walls collapsed in 1947 and was never put back when the walls were repaired and rebuilt by the city. At the time of the accident there was no fence nor barrier of any kind between the sidewalk or Murphy yard and the creek.
Vicki lived with her parents, Mr. and Mrs. Elmer Murphy on the south side of Edwards Street. A public grade school was located on Edwards Street about a block west of the Murphy home. Hundreds of small school children passed the spot every day. They were usually on the sidewalk, but they pushed over into the strip of land between the sidewalk and the creek so that it became worn bare and packed hard like a cement walk.
The following copies of exhibits present a visual view of the Murphy home, Edwards Street, and Virden Creek where it connects with the Waterloo Storm sewer system.
Mrs. Murphy, as the only eye witness, saw what happened through the middle window shown on defendant's exhibit '1'. (See mark 'x' on window.)
Vicki was a member of the school patrol. Her duties included patrolling the intersection of Edwards Street and Logan Avenue, which included the sidewalk and creek tunnel in question.
It is pertinent that we show Mrs. Murphy's evidence as to what happened in connection with Vicki being pushed and her early care by the doctor. The testimony was as follows:
'Q. Now, inviting your attention to 12:45 or possibly a few minutes earlier or later, did you have occasion to look out of the west window of your home into the area of Virden Creek and the drop-off? A. Yes, I saw a little boy running back and forth across the wall.
'Q. I hand you Plaintiff's Exhibit 'A' and I ask you to make an 'X' on this diagram where Vicki was standing at that time? A. Right about there. (See 'X' on Exhibit 'A')
'Q. Now this, Mrs. Murphy, indicates the sidewalk. You have testified that she was standing on the sidewalk. A. On the sidewalk.
'Q. What happened, then? A. Well, when this little boy got up behind her back he all of a sudden ran toward her and just lunged out with all his might, and he hit her about at the waistline or possibly about it. Just about the middle of her back.
'Q. What happened, then? A. She staggered and stumbled, half falling, several feet before she went over the edge. I thought she would get her footing, but she didn't. On the very edge I saw her go back like this for a minute and then fall over the edge.
'Q. Whereabouts along the edge did she fall over the edge? Would you indicate that on Exhibit A? A. Right about here I would say.
'Q. Would you put a 'Z' where the edge was that she went over?' (See Exhibit A)
II. Defendant assigns eight alleged errors as follows: 1. Plaintiff did not prove negligence justifying submission of the case to the jury. 2. In not instructing the jury that some of the evidence indicated Vicki was not on the sidewalk when she was pushed by the small boy; that the jury was entitled to this theory of defendant's case; that the court refused to give an instruction to this effect requested by defendant. 3. That there was insufficient evidence to sustain evidence to sustain the amount of the verdict in favor of Vicki. 4. That the jury should have been instructed with reference to contributory negligence of Elmer Murphy, Vicki's father, in connection with the expenses incurred by him for Vicki. 5. That the evidence of the technician who took an electroencephalogram was wrongfully admitted and interpreted. 6. That the court refused to allow the small boy, five years old who pushed Vicki, to testify. 7. The court refused to admit in evidence a written statement of Mrs. Murphy to the police department of Waterloo, which statement was contradictory of, and inconsistent with, Mrs. Murphy's testimony at the trial. 8. In admitting in evidence photographs showing precautions taken after the accident for the prevention of future accidents.
III. Defendant contends plaintiff did not present sufficient evidence of negligence to justify the court in submitting the case to the jury.
In addition to the factual statement, as heretofore shown, it appears in the record that sometime prior to 1946 a fence had been erected around what would be called the head of Virden Creek. The fence was close to the edge of the creek walls and created a barrier against anyone who might come up to the place of the sudden drop into the bed of the creek. Through the passage of years this fence became dilapidated and worn out. A short time prior to 1947 two of the sidewalls of the creek fell in. In 1947 the city entered into a contract with a contracting firm by the name of Rooff & Spencer for the rebuilding of the walls and placing a cap upon the top of the walls. The improvement cost $17,927.05. The work was inspected by a city inspector and after being approved was paid for under a Resolution duly adopted by the City Council.
When this work was done the city did not re-erect the fence which had previously existed around the head of Virden Creek. As stated supra, the head of the creek ran up to approximately four feet from the sidewalk at the closest point to about eight feet as the creek proceeded in a southeasterly direction.
The important angle of approach to the matter of the city's liability in this case is the proximity of the creek to a city sidewalk. There was a hazard in the situation by reason of failure to erect any fence or barrier at the head of the creek or around the nine foot drop into the creek
Section 389.12, 1958 Code, I.C.A., provides:
'They (cities) shall have the care, supervision, and control of all public highways, streets, avenues, alleys, public squares, and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances.'
The matter of the liability of a city or town in case of defects in or near streets or sidewalks had had the consideration of this court in an early case and in recent cases. An early case is Manderschid v. Dubuque 29 Iowa 73, 87, 4 Am.Rep. 196; later cases are Bixby v. Sioux City, 184 Iowa 89, 96, 164 N.W. 641, 644; Nicholson v. Des Moines, 245 Iowa 270, 60 N.W.2d 240, 44 A.L.R.2d 616.
Appellant contends there was no liability because the accident which happened to Vicki was not one which could reasonably be anticipated, even with the creek close to the sidewalk.
In the case of Priebe v. Kossuth County Agricultural Association, Inc., 251 Iowa 93, 99 N.W.2d 292, 296, the court said: 'In order to constitute negligence it is not necessary that defendant could have foreseen the particular injury that resulted provided it should have foreseen its omission to act would probably result in injury of some kind to some person.'
In McCormick v. Sioux City, 243 Iowa 35, 38, 50 N.W.2d 564, 566, the court said: 'Where reasonable minds might differ as to whether an accident could or should have been reasonably anticipated from the existence of the alleged defect or obstruction, the question as to the negligence of the city becomes a question for the jury.'
In Whitlatch v. Iowa Falls, 199 Iowa 73, 75, 201 N.W. 83, 85, the court said: 'The duty to maintain the streets in a reasonably safe condition for travel includes, when reasonably necessary, the erection of barriers or guard rails along grades and at other dangerous places.'
In Nicholson v. Des Moines, supra, decedent was proceeding along a cinder sidewalk in the dark. At one place close to a bridge the cinder...
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