Nicholson v. City of Des Moines

• Decision Date: 22 September 1953
• Docket Number: No. 48317,48317
• Citation: 245 Iowa 270,60 N.W.2d 240,44 A.L.R.2d 616
• Parties: , 44 A.L.R.2d 616 NICHOLSON v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

Page 240

60 N.W.2d 240

245 Iowa 270, 44 A.L.R.2d 616

NICHOLSON v. CITY OF DES MOINES.

No. 48317.

Supreme Court of Iowa.

Sept. 22, 1953.

Rehearing Denied Dec. 19, 1953.

Dickinson, Throckmorton, Keir, Parker & Mannheimer, Des Moines, for appellant.

John A. Blanchard, Harris M. Coggeshall and Frank D. Bianco, Des Moines, for appellee.

OLIVER, Justice.

Plaintiff's decedent, Winfred Vincent, aged seventy-two years, was a carpenter by occupation. The petition alleged he died from injuries caused by his falling into a pit at the northwest corner of the bridge spanning Four Mile Creek on Easton Boulevard between East Thirty-sixth Street and East Thirty-seventh Street, Des Moines; that immediately prior to falling into the pit, decedent was walking east on a cinder covered path maintained by the city along the north side of Easton Boulevard, which path led directly to a walk for pedestrians at the north side of the bridge; that his death was caused by the negligence of the city in failing to maintain a barrier or railing and a street light at the place and give warning of the pit.

Defendant's motion for directed verdict was sustained. The main question here is whether there was sufficient evidence of negligence of the city to require the submission of that issue to the jury. Under the rule applicable in such cases the evidence will be considered in the light most favorable to plaintiff.

Mr. Vincent's body was discovered in the pit, March 25, 1952. He was last seen alive shortly after 11:30 P. M., March 24, by the driver of a curbliner bus which had transported decedent from downtown Des Moines to the bus terminal at East Thirty-third Street and Easton Boulevard. From that point decedent had frequently walked east on Easton Boulevard about three city blocks to and across the bridge, and several blocks farther to his home. For the first two blocks east of the bus terminal there was a cement sidewalk along the north side of Easton Boulevard. Between the east end of this sidewalk and the pedestrian's lane on the north part of the bridge, a distance of approximately one block, the sidewalk maintained by the city was a cinder path several feet in width, without definite margins. Photographs show this cinder path was rough and somewhat irregular. At the corners of the bridge were concrete extensions of side rails, about twelve feet long, which flared outward several feet. For most of its distance the east and west cinder path ran on a line which would have carried it some feet north of the north edge of the bridge and abutments and into the pit. As it neared the bridge the cinder path curved to the south, run inside the concrete railing and connected with the sidewalk on the north part of the bridge. The bridge is a few feet south of a bridge it replaced. A witness testified: 'When the old bridge was there we had a cement sidewalk then leading all the way to the old structure * * *. At that time the cement sidewalk led directly to the north side of the old structure. The sidewalk was straight.' The city made the curved cinder path as the approach to the new bridge which was constructed about 1943 or 1945.

The pit or hole was in the west bank of the creek. Apparently it had been formed by the washing away of the soil by the discharge of water from an eighteen inch concrete pipe installed by the city to carry surface water from a ditch on the south side of the cinder path. This drain pipe passed underneath the cinder path and through the west bank of the creek. Since about 1943 or 1945 the washing away of the soil by the water discharged by the pipe had caused the pit or hole to encroach upon the west bank of the creek a few feet farther (west) and the end (east) section of the drain pipe had become exposed and unsupported and had fallen off. This disconnected section, several feet long, had been lying in the bottom of the pit for some years. The walls of the pit were precipitous. Its depth was estimated at ten to fifteen feet, its width eight feet. Glenn Davis testified the west edge of the pit was ten or twelve feet west of the west end of the bridge. The pit was in line with the cinder path, before the path turned into the bridge. This would locate it within the line of the street but outside the traveled portion thereof.

Exhibit E is a photograph taken the morning the body was found. The camera apparently pointed west. It shows the pit, with a light layer of snow on the ground, the end of the drainage pipe, the disconnected section of pipe, in the bottom of the pit and beside it, indistinctly, decedent's body. It shows also the west end of the bridge and a police car which brought the corner to the place.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Exhibit H is a photograph taken with the camera pointed east. Witnesses testified it shows the west end of the bridge, the west concrete abutment, the cinder path leading to the bridge, the curve in the cinder path and the edge of the pit. The day decedent's body was found there was a little more snow on the ground than the following day when Exhibit H was taken.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Glenn Davis testified that, at the northwest corner of the bridge, the pit was six feet from the north edge of the cinder path. The coroner, Dr. Shaw, testified the approximate distance from the concrete barrier to where the end of the tile drained into the creek was about four or five feet. When he came to view the body he clung to the railing and the girders of the bridge to get down to it. He testified the pathway between the bridge and the pit 'was not very wide * * * possibly four to six feet wide.' B. H. Frost placed the distance at 8 1/2 feet. The estimate of Mrs. Davis was six feet.

The evidence indicates the curve in the cinder path was about twelve to sixteen feet west of the pit. Witnesses testified that a person walking easterly on this cinder path if he were to continue east in a straight line would walk on the north side of the concrete abutment and into the pit. A witness testified that one morning in a snowstorm, '* * * I had my head down walking what I thought was the path, and the first thing I knew I was over pretty close to the edge of this embankment. * * *. Snow was on the ground and you couldn't tell where you were.'

The city maintained a street light at the northwest corner of the bridge but it was unlighted at times and had not been burning for several nights prior to and including March 24, 1952. The cinder path and the vicinity of the pit were enveloped in darkness. There was a light snow on the ground. Some people walking along the cinder path that night were unable to see their way and found it necessary to use a flashlight. The record does not show Mr. Vincent intentionally left the cinder path. There was no barrier, fence or other structure to prevent a person who walked east in the direction of travel along the cinder path from falling into the pit if he failed to make the turn near the bridge and continued forward about twelve or sixteen feet.

Mr. Vincent's body was found in the pit at about seven o'clock the following morning. Dr. Shaw testified he examined the bottom of the pit and found an indentation such as might have been made by a man's head; that Mr. Vincent's death was caused by head and brain injuries, and 'The autopsy findings were consistent with the belief that the injuries were received as a result of a fall into the deep gorge when the man struck his head on the frozen ground.' Dr. Shaw expressed the opinion Mr. Vincent died about three or three thirty that morning, several hours after he had fallen into the pit. Plaintiff's theory is that Mr. Vincent, walking homeward along the cinder path in the darkness, unintentionally left the cinder path near the bridge and fell to his death in the pit, and that the proximate cause of his fall and death was the negligent failure of the city to maintain a proper barrier and street light.

I. Municipal corporations are required to exercise ordinary care to make and keep their streets and public ways, including bridges and their approaches, reasonably safe for travelers thereon using ordinary care. This requires municipalities to protect travelers from dangerous places or hazards in all parts of the way opened to public use. Nor is such requirement limited to defects within the traveled way. Bixby v. City of Sioux City, 184 Iowa 89, 96, 164 N.W. 641, 644, contains a good statement of this rule. The court there pointed out it knew of no reason or authority for saying the care required of the municipality 'does not include the fence or barrier, if any, erected between the street and a dangerous cliff or excavation, over which a traveler using such street is liable to fall. Indeed, it has often been held that the lack of a proper barrier in such a situation, although the excavation or pit is not within the street boundary, is nevertheless a defect in the street within the meaning of the law.'

A striking example of the application of this rule is found in Manderschid v. City of Dubuque, 29 Iowa 73, 87, which states:

'The bridge, it is insisted, is a quarter of a mile from the beginning of the extension of Sixth Street proper. It is insisted that it cannot be possible the bridge is in such near proximity to the street, that in contemplation of law, the city would be liable for injuries sustained by reason of its dangrous character.

'We think differently. It is the duty of the city, not only to keep the street in repair, but to erect barriers and protections to prevent travelers from passing, without its limits but in its general direction, into dangers and obstructions. The city cannot be permitted to suffer a street to terminate in a kind of cul de sac leading to precipices or pitfalls, whereby the life and property of the traveler is endangered. The court by the instruction very properly left the jury to determine whether the...