Parks v. City of Des Moines

• Decision Date: 23 January 1923
• Docket Number: No. 34993.,34993.
• Citation: 191 N.W. 728,195 Iowa 972
• Parties: PARKS v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

195 Iowa 972

191 N.W. 728

PARKS

v.CITY OF DES MOINES.

No. 34993.

Supreme Court of Iowa.

Jan. 23, 1923.

Appeal from District Court, Polk County; Lester L. Thompson, Judge.

Defendant appeals from a verdict and judgment in favor of plaintiff of $4,500. Plaintiff charges that defendant was negligent in permitting accumulations of ice and snow on its sidewalk, from which she fell and was injured. Defendant appeals. Affirmed.

De Graff, J., dissenting.John J. Halloran, Reson S. Jones, Chauncey A. Weaver, and Paul Hewitt, all of Des Moines, for appellant.

Sampson & Dillon, of Des Moines, for appellee.

PRESTON, C. J.

Plaintiff is 65 years of age. The accident caused an impacted fracture of the neck of the femur, between the head of the femur and the femur itself. Fragments of the broken bone were crushed together. She was in the hospital about three months with sand bags placed along her limb. She suffered greatly. It was about six months before she was able to be up and to use crutches, and about seven months before she was able to be out. One limb is shorter than the other. No question is made but that her injuries are serious and permanent. No question is made as to the amount of the recovery. A number of witnesses were introduced on the part of plaintiff to show the icy condition of the walk, and the length of time it had existed, weather conditions, and so on. No witnesses were introduced by defendant to contradict the plaintiff's testimony. But two witnesses were used for the defendant, one a photographer who identified a photograph of the premises, taken some time thereafter, to show the general situation, the sidewalk, embankment adjacent thereto, the stores, and other buildings nearby, and the like. The other witness testified briefly in regard to the bank and its height and slope in front of his property, where plaintiff was hurt; that it varies from two to six feet. It is higher towards the west. His house faces north, and the sidewalk is next to the bank on the south side of the street. Appellant concedes that there was no dispute in the evidence, and that therefore it was a question of law for the court.

Two main questions are relied upon by appellant for a reversal: First, that the evidence does not show that there was any negligence on the part of defendant which proximately caused plaintiff's injury, for that the condition of the walk was from natural causes, which the defendant was powerless to prevent and powerless to remedy; second, that the length of time was so short that defendant cannot be held to have had constructive notice of the dangerous condition. The place where she fell was on Park avenue, in Des Moines, the principal thoroughfare running east and west in that part of the city. It is much traveled. West Ninth street is the principal street running north and south. The intersection of the two streets is a short distance, a block or so, east of where plaintiff was hurt. Park avenue is the only street cut clear through in that part of the city. The people living east of Tenth street have to go over to Park avenue to get to the street car line. There is but one sidewalk on Park avenue, between Ninth and the car line. The place where plaintiff fell was on the sidewalk on the south side of Park avenue. There is no walk on the opposite side of the street. At Ninth and Park there is a business center, including a number of stores, a branch post office, schoolhouses, and church. On Friday, December 17, 1920, at about 3 or 3:30 p. m., plaintiff started to visit some of her neighbors on Park avenue between Ninth and the 1300 block on Park avenue. She was going west. The sidewalk slopes toward the west. The walk, or parts of it to the east of the lot where she fell, had been cleared off. She fell and was hurt about 4 p. m. of that date. No snow fell on the 17th, and no show to speak of had fallen before the 13th. On the Monday before--that is, on December 13th--there was a heavy fall of snow. It commenced snowing about 1 o'clock, and at 7 o'clock that evening it was substantially six inches deep. It had been tramped down, and perhaps thawed some, so that it was about 4 1/2 inches deep on Tuesday, 4 inches Wednesday, 3 inches Thursday, and Friday 2 1/2 inches. Between Monday and Friday there was some change of temperature, the highest temperature being 46, or 14 above freezing, and the lowest 19, or 13 below freezing. For about three hours one day during this period it was warm enough to thaw, so that the snow was softer, but, as said, it remained 2 1/2 inches thick on Friday. On Thursday, the 16th, the thermometer was highest, and the snow thawed some a part of that day, then froze again. The highest temperature on Tuesday and Wednesday was 40, and the lowest 28. Friday was the coldest day. On each of these days, Monday to and including Friday, it was freezing a part of each day.

It is argued by appellant that these changes were radical. The thought is that it was so warm that the snow became slushy. There is some evidence tending to show that the thawing was enough so that footprints would show, but it must be remembered that the snow was hard packed from tramping of pedestrians, and that the thawing during the day was for a short time. Time and other elements are necessary to be considered on the question as to the extent of the thawing. Rose v. Ft. Dodge, 180 Iowa, 331, 155 N. W. 170. The defendant brought out on cross-examination of plaintiff's witnesses that sometimes water from thawing snow would run down the bank and over the walk. It is not clear from the evidence whether such was the fact at the time and place in question, or that this was the cause of the icy and dangerous condition of the walk where plaintiff fell. It may have had a tendency in that direction, and may, to some extent, have been the cause.

[1][2] It is contended by appellant that not more than one or two days had elapsed from the time the walk became dangerous, if it was so, before plaintiff fell. But the evidence shows that from a time soon after the snow fell, for substantially four days, because of the travel and tramping over the snow, and thawing and freezing, it had become packed, icy, and was rough, rounded, uneven, and in a condition substantially different from the way the snow fell naturally. A jury could have found from the evidence that during this entire time such was the condition, though it may have changed somewhat from day to day. They could have found that such was the condition at the time plaintiff fell. The evidence is by no means conclusive that the condition of the walk which resulted in plaintiff's fall was caused by a thaw within a day or two prior thereto, which materially changed the rough and dangerous condition, which, as said, had existed for at least four days. At least it was for the jury. The cases cited by appellant are largely decisions by courts in other states.

2. Without entering into a detailed discussion of the evidence, or a rediscussion of the principles of law applicable to such a situation, we think the evidence brings the case well within the rule as laid down in our cases, and that the condition of the walk was such as to constitute actionable negligence, which was the proximate cause of plaintiff's injury. Templin v. Boone, 127 Iowa, 91, 102 N. W. 789;Griffin v. City of Marion, 163 Iowa, 435, 144 N. W. 1011;Gregg v. Town of Springville, 188 Iowa, 239, 174 N. W. 23; Rose v. Ft. Dodge, supra; De Wall v. Sioux City, 181 Iowa, 333, 164 N. W. 640;Allen v. Ft. Dodge, 183 Iowa, 818, 167 N. W. 577;Finnane v. Perry, 164 Iowa, 171, 145 N. W. 494;Berger v. Salt Lake City, 56 Utah, 403, 191 Pac. 233, 13 A. L. R. 17, 29, and note. Other cases might be cited, but the rule is well settled in this state, and as announced in the foregoing cases.

It was pointed out in some of the earlier cases that there was a conflict in the authorities from other jurisdictions in regard to liability for accumulations of snow and ice. The rule was adopted and followed as shown in the cases above cited. In the last case on the subject, the Gregg Case, supra, we said:

It is well settled by our decisions that “no such duty [with respect to such accumulations] exists while the snow and ice remain unchanged by the interference of man or other artificial cause. That duty arises only when, by reason of such interferences with natural conditions, the snow or ice becomes rigid [ridgy] or rounded or uneven, or it is made to assume some other form or present some other danger that would result solely from natural causes”--citing cases.

Another case, Tobin v. Waterloo, 131 Iowa, 75, 107 N. W. 1031, restates the rule in more specific terms thus:

“Ice and snow accumulated on the walk from natural causes, though slippery because of their smooth surface, is not a defect for which the city may be held responsible. It is only when such ice and snow are allowed to remain upon the walk until, by the tramping of pedestrians, freezing and thawing, or other causes, the surface becomes rough, rigid [ridged], rounded or slanting, so that a person, in the exercise of ordinary care, cannot pass over it without danger of falling, that the defect is such as to render the city liable.”

The other cases are to the same effect.

The condition described was proven by the testimony in this case, and the jury could have so found. Witnesses testify specifically that this condition had existed for substantially four days. The evidence fully meets the requirements of the law, as laid down in all our cases. In this case we are but following our own precedents. It is not our purpose to extend or broaden the rule.

[3] As indicated, there is but little evidence in regard to snow melting on the bank and running over the walk, and that was drawn out by defendant. If this had anything to do with the icy condition, it does not necessarily defeat a recovery. It would be but a contributing cause. There is no evidence that shows...