Ritter v. City of Fort Madison
| Decision Date | 10 February 1931 |
| Docket Number | 40666 |
| Citation | 234 N.W. 814,212 Iowa 564 |
| Parties | FRIEDA RITTER, Appellee, v. CITY OF FORT MADISON, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED MAY 6, 1931.
Appeal from Lee District Court.--JOHN M. RANKIN, Judge.
Action at law to recover damages for injuries sustained by stepping in a hole in a sidewalk. Trial to jury. Verdict for the plaintiff. Defendant appeals. The facts appear in the opinion.
Reversed.
J. W Napier and E. H. Pollard, for appellant.
J. M C. Hamilton and E. W. McManus, for appellee.
On October 16, 1929, plaintiff filed a petition at law in the District Court of Lee County, Iowa, seeking to recover damages from the defendant city.
It is alleged that the defendant maintained a sidewalk in the city of Fort Madison, abutting certain described premises and negligently and carelessly permitted a hole to remain in said sidewalk; and by reason of the length of time that said sidewalk was so permitted to remain, had knowledge of the dangerous condition of said walk, and that about nine o'clock in the evening of Sunday, August 18, 1929, plaintiff, while walking along the sidewalk, stepped into said hole, and that as a result thereof, she sprained her ankle and was otherwise injured.
On November 25, 1929, the defendant filed a motion for joinder of parties defendant by which it secured an order that the owner of the real estate upon which the defective sidewalk abutted should be made a party defendant.
On April 28, 1930, the defendant city answered, admitted its duty to maintain its sidewalks in reasonably safe condition for use by pedestrians, admitted the maintenance of the walk in question, and denied liability.
On May 5, 1930, Myrtle Donaldson, the property owner, filed a special appearance, claiming that no original notice was served on her as required by Section 11059 of the Code of 1927. The order making her a party was afterwards rescinded.
The testimony tends to show that the defect in the sidewalk in this case, of which complaint was made, is of the character often found in cement sidewalks, resulting from the cracking and removal of the hard upper coating of the walk, followed by the disintegration and removal of a portion of the coarser layer of the cement immediately under the hard, smooth surface.
One witness testified that at the outside edge of the walk (the south edge) the hole was 3 1/4 inches deep at the lowest point and the width of the broken-out place was 9 inches. Six inches from the south edge the hole was 2 1/2 inches at the deepest point and the rest was 1-5/8 inches and the width 9 1/2 inches. Twelve inches from the south edge the hole was practically the same as at six inches from the edge. Eighteen inches from the edge the hole was 1-3/8 inches to 2 inches deep, and the width of the break 9 1/2 inches.
The witnesses vary somewhat in their estimates of the size and depth of the hole. The sidewalk was on the north side of an east and west street. The hole in controversy was a short distance east of a north and south street, west of which street there was no sidewalk on the east and west street. The property south of the street at the point of the accident, and in that vicinity, was not improved, and bordered on the river and railroad tracks. There was not much traffic in that block.
There is abundant evidence in the record that a defect, substantially of the condition described, had existed in the sidewalk for several months.
The plaintiff was forty years of age and formerly lived in the immediate vicinity of the defect. For over twenty years, the plaintiff had owned a house a very few doors from the place of the accident. For a few months prior to the accident, plaintiff had lived in Chicago where she was employed. The accident happened on Sunday evening, August 18, 1929.
Numerous errors are assigned.
I. The appellant complains because the court refused to permit the introduction of the Metropolitan Hotel Register for the purpose of showing that the plaintiff had not registered at said hotel on her arrival in Fort Madison Saturday morning, August 17, 1929, as she testified she did.
The plaintiff had testified that she arrived in Fort Madison about four o'clock on Saturday morning, that she had stayed at the home of Darnolds, who lived a few doors east of the property owned by the plaintiff, and in the immediate vicinity of the defective sidewalk.
It developed later from the testimony of Mrs. Darnold that plaintiff did not stay at the home of Darnolds on the night of August 17th, and that Mrs. Darnold did not know where she stayed.
The plaintiff then returned to the witness stand and testified, under direct examination, that she stayed at the Metropolitan Hotel and had not been at her own home until she went down with Mr. and Mrs. Darnold on the evening of and at the time of the accident. At this time, on cross-examination, plaintiff swore she registered at the Metropolitan Hotel when she came in on Saturday morning early and signed the register in her own hand-writing, in her own name.
It clearly appears from the evidence that in the month of March of the same year when the plaintiff left her home to go to Chicago, she was aware that the sidewalk was cracking at the south margin at the place where the accident happened. The question whether plaintiff had, on Saturday and Sunday, before the accident, passed over this sidewalk which she knew had started to break up some months before, was a material inquiry.
It appears that plaintiff's brother was occupying a room in the house owned by plaintiff in the immediate vicinity of the place of the accident and that in the room he had some of his personal effects "piled up." The plaintiff at one time in her examination, testified that on Saturday morning previous to the accident, she went to see her brother where he was "engaged in firing a furnace in a church." at which time the evidence tends to show she got a key to her house. There is some conflict as to how long she kept the key. There is evidence to the effect that she brought it back to her brother "when she finished with it," which was before the accident. The evidence also tends to show she brought with her from Chicago some clothing which she wished to leave in the house, which was being used by her brother. It is quite apparent that she, by her testimony, was attempting to create the impression before the jury that she had not gone to her house until Sunday evening, August 18th when the accident happened. On the other hand, as there was no sidewalk in the block west of the property and as the testimony tends to show she got the key from her brother on Saturday morning, August 17th, the jury might easily find that she had gone to her home on Saturday and Sunday at different times, and in doing so had passed over the particular part of the sidewalk where the injury occurred. Whether she had registered and was living at the hotel or whether she had not registered and was not...
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