Platts v. City of Ottumwa

• Decision Date: 19 October 1910
• Citation: 127 N.W. 990,148 Iowa 636
• Parties: PLATTS v. CITY OF OTTUMWA.
• Court: Iowa Supreme Court

148 Iowa 636

127 N.W. 990

PLATTS

v.CITY OF OTTUMWA.

Supreme Court of Iowa.

Oct. 19, 1910.

Appeal from District Court, Wapello County; F. W. Eichelberger, Judge.

Action to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Clyde G. Sparks and Gilmore & Moon, for appellant.

Cornell & Gillies and Jaques & Jaques, for appellee.

WEAVER, J.

The plaintiff, having fallen and received bodily injury upon a sidewalk in the defendant city, brings this action to recover the damages so sustained. She charges the fact to be that the sidewalk, which was constructed of brick, was defective and dangerous by reason of a hole or depression in its surface which the defendant had negligently permitted to remain unrepaired for a considerable period of time, and that she without negligence upon her part stepped into said hole or depression, causing her to fall as above stated. The defendant denies the allegations of the petition, denies that it was in any manner negligent with respect to the walk, and avers that, if plaintiff was injured, it was occasioned by her own want of reasonable care. Plaintiff sues both in her own right and as assignee of her husband. There was a trial to a jury, and verdict for plaintiff in the sum of $550, and from the judgment rendered thereon the defendant appeals.

Counsel for appellant prefaces his argument with the statement that the appeal is based on the contention that a verdict should have been directed in favor of the city because of failure of evidence to sustain the charge of negligence, and to that question we shall confine our discussion. While there is some dispute as to its precise size, shape, and depth, it is shown beyond all reasonable doubt that there was a depressed place or hole in the walk, and that it was of such depth or extent that a person stepping into it unexpectedly was liable to fall or be thrown down. The proposition most relied on by appellant is that the defect was not “open, visible, and notorious” and had not existed such a length of time as to make the defendant chargeable with negligence in failing to discover and remedy it. The walk was 12 feet wide, constructed of brick, and except for the particular place in question appears to have been in good condition. The defect of which plaintiff complains was near the inner edge of the walk, opposite the door or steps of an adjacent building, from which plaintiff was coming when she fell. While it was not conceded by the appellant, there was evidence from which the jury could properly find that said defect had existed at least two weeks, and possibly more. One witness testified that she was present at the time of plaintiff's fall, and recognized the defective place as one into which she herself stepped and fell two weeks earlier. Another had seen it “ten days or two weeks” prior to the accident. Another had noticed an irregularity in the surface of the walk two months before. Other corroborating testimony was produced. On the part of defendant there was evidence tending to show repair of the walk at this point not long prior to the plaintiff's injury, and several witnesses who used the walk daily or frequently had never noticed anything wrong in its condition. It hardly seems necessary to say that under the well-settled law of this jurisdiction the question of defendant's negligence was for the jury to decide, and not for the court to dispose of as a matter of law. Smith v. Des...