Ryan v. Foster

• Decision Date: 19 March 1908
• Parties: RYAN v. FOSTER.
• Court: Iowa Supreme Court

137 Iowa 737

115 N.W. 595

RYAN

v.FOSTER.

Supreme Court of Iowa.

March 19, 1908.

Appeal from District Court, Polk County; A. H. McVey, Judge.

Action at law to recover damages due, as is alleged, to the negligence of the defendant, his agents and employés. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. Reversed.

See 109 N. W. 1108.

Charles S. Bradshaw, for appellant.

McHenry, Mulvaney & Jones, for appellee.

DEEMER, J.

The negligence charged is that defendant was the owner of certain property at the corner of Center and Eighth streets in the city of Des Moines; that “there were no buildings on the said lot, but the same was occupied by a high billboard built in a northeasterly and southwesterly direction diagonally across the said lot; that on or about the 5th day of February, 1902, the defendant caused the said billboard to be torn down preparatory to the erection of a building on the lot; that in tearing the said billboard down the employés of this defendant piled the lumber taken from the said billboard on the sidewalk on the north side of Center street and west of Eighth street; that in the lumber so piled on the sidewalk there were large nails and spikes, and the lumber was so laid that the said nails and spikes pointed upward; that the laying of the said boards upon the said sidewalk was entirely unnecessary, and constituted negligence on the part of the defendant, which rendered travel upon the said sidewalk extremely dangerous; that this plaintiff was obliged to pass the sidewalk on the said 5th day of February, 1902, and in passing the same tripped and fell upon the said lumber, and ran one of the nails sticking from the boards lying on the said sidewalk into her left leg near the kneecap.”

There was evidence tending to show that plaintiff, while passing along the sidewalk on the north side of Center street, between Eighth and Ninth, in the city of Des Moines, on February 5, 1902, shortly after 10 o'clock in the forenoon, caught her foot on a billboard lying on the sidewalk, fell, and was seriously injured by a nail protruding from the board. It appears that billboards of defendant and an amusement company had been erected from a point four feet north of Center street on the east line of the alley diagonally to the northeast. These were in sections 16 feet long and 10 feet high, consisting of common inch boards a foot wide and 16 feet long nailed to four by four-inch posts set 8 feet apart. On the morning in question two employés of the defendant were sent to remove these billboards, and in so doing had cut off the two southwest posts, loosened the boards from the third post, and allowed the section to fall forward partly on the sidewalk. One of the employés was called as a witness, and he testified that as soon as the section fell he and his companions “started taking it to pieces, started knocking the boards off, and carrying the four by fours back,” and that they did so at “the northeast end of the section”; that they were tearing the boards apart when the plaintiff came along; that the boards extended diagonally over the sidewalk, which was five feet wide, within a foot or two from the outer edge; and that the boards had been on the walk only 5 to 10 minutes prior to the accident. On the other hand, the plaintiff testified that the boards extended across the walk over the parking, and that she did not notice the billboard before she fell. The day was cold and cloudy. Snow was falling, and the wind was blowing in her face. Plaintiff had traveled over the walk frequently, and had noted its condition the night previous. Plaintiff testified, as follows, regarding her conduct just before she fell: “Q. Did you see the boards there on the walk? A. Not until after I was thrown. Did not know what happened to me until I fell. The board I fell on was a section of the billboard, all nailed together. I did not notice whether the boards were nailedon two by fours or four by fours. Q. You noticed that this section of the board was down? A. Yes, sir. Q. You stumbled over that board? A. I did not notice it until after I fell. Q. You didn't notice the board at all as you came along there? A. No; not until after I fell. Q. You were going along in your usual way? A. Yes, sir; I crossed that alley, and I had got quite a little bit, and the first thing I knew I was pitched right down. Q. Up to that time had you noticed the men working? A. No. Q. You were not looking at the sidewalk particularly? A. Looking where I was going, like anybody. If you came out there and nothing before you, you would not know until you ran into something. Q. It was a surprise to you when you fell? A. Yes; I did not know what happened to me. Q. Didn't know you were walking along these boards? A. No; I supposed I was walking on the sidewalk I had always walked on. Q. Before you got up did you notice whether these boards covered the entire walk, or whether they did not? A. They ran right across and part of the way on the parking. They were pretty nearly out. They were not on the ground at all on this side. Q. That was a grass parking along there. A. Yes; snow, of course, covered the parking. Q. Center street was paved? A. Yes, sir. Q. That was all open? A. I suppose it was. Q. You crossed these afterwards? A. Yes, sir; the street was open, but the sidewalk was not. Q. That section was all nailed together, that is, the boards were nailed to the cross-pieces? A. They were nailed together part of the way that I could see. I didn't go clear up. Q. Down here on the walk, that part of it that was on the walk was fastened together, fastened on the cross-pieces? A. I supposed they...