Norman v. Sioux City
| Decision Date | 15 December 1925 |
| Docket Number | 37055 |
| Parties | E. A. B. NORMAN, Appellee, v. CITY OF SIOUX CITY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--ROBERT H. MUNGER, Judge.
ACTION for damages for personal injuries resulting from a defective sidewalk. Verdict and judgment for plaintiff, and defendant appeals.
Reversed.
Paul M Hatfield and E. G. Smith, for appellant.
Burgess & Gill, for appellee.
STEVENS J. DE GRAFF, ALBERT, and MORLING, JJ., concur.
Rebecca Street in Sioux City extends north and south, intersecting with Palmer Street, which extends east and west. The intersection of these streets is not paved. There is a cement sidewalk on the west side of Rebecca Street, and a cement spur about four feet in length to the east. From the east end of this walk there is a wooden approach, about 6 feet 6 inches long, constructed of three 2x12" planks, resting upon the ground at the ends, and held in place by stakes driven in the ground. The planks were nailed to 4x4's at the top and bottom, with cleats across the top, to assist pedestrians in passing over same. The top cleat extended out from the edge of the planks, for the purpose of making a junction between the sidewalk and the plank. The approach, in some way, became separated, at the upper end, from the cement sidewalk, so as to leave a space or opening, the width of which, according to the testimony of the witnesses, varied from one to perhaps five inches. This was the condition of the walk on January 17, 1922, when appellee, while in the act of passing from the cement walk onto the approach, fell in such a manner as to receive a compound fracture of his left leg. He alleged in his petition that his fall and consequent injuries were caused by reason of the fact that his foot, or the heel of his shoe, became caught in the space between the approach and the cement walk.
The negligence charged was the failure of the city to maintain the walk in a reasonably safe condition for the use of pedestrians. The case was twice tried in the court below, both trials resulting in verdicts for appellee. For our prior decision, see Norman v. City of Sioux City, 197 Iowa 1310, 197 N.W. 18. No claim is made by appellant that the accident did not occur at the place charged, nor that the injuries complained of were not as shown by appellee's testimony.
Upon the former appeal, we reversed the trial court on two propositions: that is, that the defect complained of was not of such a character as to charge the city with negligence and that it was not shown that the defect, if any, was the proximate cause of the accident.
Appellant moved for a directed verdict, upon the ground that the prior decision of this court is the law of the case, and in all respects binding upon appellee and the court. The motion was overruled. This ruling presents the controlling and decisive question upon this appeal. The case was tried upon an amended and substituted petition, which appellee asserts materially changed the issues from those formerly tendered. It is also urged by appellee that the evidence upon the last trial is substantially different from that offered upon the previous trial. A profile of the approach, showing appropriate and material measurements, and also a photograph thereof, clearly disclosing the opening between it and the cement sidewalk, were introduced upon both trials. The negligence charged in the original and in the amended and substituted petition is, for all practical purposes, identical. It is true that the latter pleading went into much greater detail in alleging the facts, but the vital part of the two pleadings--that is, the specific facts constituting negligence--is the same. The allegations of collateral facts which in no wise contributed to the result complained of, add nothing to the material allegations of the original petition. In other words, the negligence charged is the same in both pleadings, and necessarily the facts constituting the cause of action alleged could not, under the circumstances of the case, be materially varied. The elevation of the cement sidewalk on the west side of the street, the incline of the approach, the material composing it, the method of its construction, and the manner in which it was placed and used, were fully disclosed by the evidence upon the former trial. Appellee did not fall upon the approach, and no claim is made that the degree of the incline had anything to do with the accident. Appellee had proceeded north on the cement sidewalk to the intersection, and then turned east to Rebecca Street, when, as he claims, his heel or foot caught in the opening described, causing him to fall, in the manner and with the result already noted. Upon the former trial, he testified as follows:
Upon the last trial, he testified as follows:
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