Rusch v. City of Dubuque

• Citation: 116 Iowa 402,90 N.W. 80
• Parties: RUSCH v. CITY OF DUBUQUE.
• Decision Date: 12 April 1902
• Court: United States State Supreme Court of Iowa

116 Iowa 402

90 N.W. 80

RUSCH

v.CITY OF DUBUQUE.

Supreme Court of Iowa.

April 12, 1902.

Appeal from district court, Dubuque county; M. C. Matthews, Judge.

The defendant appeals from a judgment against it for damages occasioned by a defective sidewalk. Affirmed.Duffy & Nelson, for appellant.

Bowen & Fitzpatrick, for appellee.

LADD, C. J.

The plaintiff, while walking on the sidewalk along the east side of Windsor avenue, between Lincoln avenue and Providence street, in the city of Dubuque, caught her foot on a spike protruding from the plank 1 1/2 to 2 inches, and fell. The evidence tended to show that the boards and the runners beneath them at that place were somewhat decayed, and also other nails sticking up. She had been over the walk several times during the fall, but had taken no notice of its condition. Nor was she observing the walk at the time of the injury. She “walked as usual and looked ahead.” Appellant insists that in failing to observe the projecting spike and avoid it she was guilty of negligence, and ought not, for that reason, recover. All required of plaintiff was that she exercise the care an ordinarily prudent person would in passing over the walk. Though in the day time protruding nails and loose planks, unless out of place, would not necessarily be so obvious as inevitably to arrest the attention of the passing travelers, holes in the way, or obstructions, such as boxes, might be noticeable without effort; but few of the thousands using sidewalks would be likely to think of defects such as these. Pedestrians intent on other matters, and looking out for their general course, usually act on the presumption that the city has performed its duty and is maintaining its streets in a reasonably safe condition. While bound to make use of their senses and exercise the caution ordinarily displayed by persons of prudence, they are not required at their peril to discover every defect, even though open and visible. Barnes v. Town of Marcus, 96 Iowa, 675, 65 N. W. 984;Baxter v. City of Cedar Rapids, 103 Iowa, 599, 72 N. W. 790. Clearly, the defects in question were not so obvious that the plaintiff may be charged as a matter of law with notice of their existence; and whether, in failing to observe them, she was negligent, was properly left to the jury.

2. It is contended that the place of the accident was not described with sufficient definiteness in the notice served on the city. Section 1051 of the Code simply requires “the place where such injury occurred” to be indicated. The locality is pointed out in the notice as “a plank sidewalk on the east side of Windsor Ave., between Providence street and Lincoln Ave., and about 150 feet from said Eagle Point Ave., and at a point opposite building No. 254 on said street.” At the corner of Providence street and Windsor avenue was a double brick house facing 40 feet on the avenue, the inside apartment being No. 254. Forty-six feet beyond this was a frame house. Plaintiff testified, “The exact place where I was injured was just about half way between these two houses.” That point was 23 feet north of the north line of No. 254, and 181 feet north of Eagle Point avenue. But the notice did not purport to give the precise location, nor was it necessary that a survey and plat be made, that the particular point might be known. Reasonable certainty as to the place is all that was required. The side of the street was given, and the defects clearly stated. The place was about 150 feet from Eagle Point avenue,--not exactly that distance, as insisted by appellant; and a variation of 31 feet cannot be held fatal. Nor was the place described as in front of No. 254, as seems to be thought. It was...