Rose v. City of Ft. Dodge
| Decision Date | 16 December 1915 |
| Docket Number | No. 30260.,30260. |
| Citation | 180 Iowa 331,155 N.W. 170 |
| Parties | ROSE v. CITY OF FT. DODGE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Webster County; C. G. Lee, Judge.
Action for damages for personal injuries sustained by reason of a fall upon defendant's sidewalk. There was a verdict for the plaintiff, and defendant has appealed. Affirmed.Mitchell & Fitzpatrick and Kenyon, Kelleher & O'Connor, all of Ft. Dodge, for appellant.
Healy, Burnquist & Thomas, of Ft. Dodge, for appellee.
The accident in question resulted from an icy condition of the sidewalk. It occurred at an intersection of sidewalks where the plaintiff was about to turn from one to the other. The plaintiff alleged in her petition that the walk at the place of the accident had become dangerous by reason of an accumulation of snow and ice which had been permitted to become rough, rounded, irregular, and uneven. The accident occurred on the evening of March 3, 1913. Ten or eleven days preceding such date there had been a considerable snowstorm, and the intervening weather had been quite cold. The place of the accident was upon one of the main sidewalks of the city, and was necessarily subjected to considerable travel. The principal question in the case is whether the condition of the street was such that the city could be deemed responsible therefor as for negligence, or whether its condition was simply the result of recent climatic conditions for which no responsibility could be attached to the city.
[1] I. The emphasis of the appeal is largely laid upon the proposition that the testimony on behalf of plaintiff failed to show that plaintiff's fall was the result of a rounded and uneven and rough condition of snow and ice. It is contended that her testimony shows to the contrary, and that it appears therefrom that she was caused to fall by the condition of the walk caused by the natural conditions immediately preceding the accident.
Appellant's argument presents to us a very careful analysis of the testimony of plaintiff herself. The plaintiff testified that the surface of the ice was rough and “humpy.” She also admitted on cross-examination that the ice was “slippery” and “smooth” and “slick.” The argument at this point is made to rest very largely upon these particular terms. Strange to say, with all our familiarity with the subject, ice is not easily described in terms. The terms here employed originated in the questions put to the witness by the counsel for defendant. It would be difficult to say that ice is not “slippery” and “slick” and “smooth” under almost any circumstances; and this is so even though it be “irregular and uneven and rounded and rough.” It would not do therefore to say, as a matter of law, that the use of such terms was necessarily inconsistent with the claim that the condition of the ice was as first described. The defendant was entitled to argue the point before the jury in the light of all the testimony in the case, and this right was undoubtedly exercised.
[2][3] Much of the appellant's argument at this point is based upon the proposition of fact that there had been a thaw in the course of the day, and that the resulting water had frozen in the course of the evening. It is contended therefore that the case is ruled by Beirness v. Missouri Valley, 162 Iowa, 720, 144 N. W. 628, 51 L. R. A. (N. S.) 218. In the cited case a verdict was directed for the defendant city, and the ruling was sustained here.
In the case at bar the evidence that there was any thawing during the day is very slight indeed. Surely the jury would have been justified in finding to the contrary. The official weather report was put in evidence by agreement. It showed that for two days preceding the accident the temperature had gone down to 15 degrees below zero. It also appeared that at some time within 24 hours prior to 7 a. m. March 4th the temperature had gone up to 39 degrees. Because such temperature was 7 degrees above freezing the inference is claimed that there must have been a thaw. This, of course, would depend upon the length of time that such temperature continued. Manifestly such temperature could not result in any appreciable melting of ice and snow in a brief period of time. One witness testified that it was “thawing most of the time” for the ten days preceding March 3d. On the other hand, the official weather report showed rather severe weather during that entire period. These statements could be rendered consistent by assuming that the thawing was such as took place in protected places and in the sunshine. It is sufficient to say that the evidence was by no means conclusive that the condition of the walk which resulted in the plaintiff's fall was caused by a recent thaw. The law applicable to this class of cases is quite well settled in this state. It has been fully announced and discussed in some of our recent cases, notably in the Beirness Case, supra, and Griffin v. City of Marion, 163 Iowa, 435, 144 N. W. 1011, and Finnane v. City of Perry, 164 Iowa, 171, 145 N. W. 494. There is little occasion for our repeating the discussions contained in the cited cases. We think the evidence in the case is such as to bring it within the two cases last cited.
[4] II. It is contended that the trial judge erred in instructions to the jury. It is said that the trial judge in his instructions changed the issues and submitted the case upon a theory not put forth in plaintiff's petition. The theory of negligence put forth in the instructions was that:
“Snow and ice had been permitted to accumulate and become packed by travel thereon as to become unsafe and dangerous.”
Particular criticism is directed to the expression “packed by travel.” It is said that such expression was not justified by any allegation in the petition. The petition did allege that:
“By reason of the traffic of...
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