Schnee v. City of Dubuque

• Citation: 98 N.W. 298,122 Iowa 459
• Parties: GUSTAVE SCHNEE, Administrator, v. CITY OF DUBUQUE, Appellant
• Decision Date: 28 January 1904
• Court: United States State Supreme Court of Iowa

98 N.W. 298

122 Iowa 459

GUSTAVE SCHNEE, Administrator, v. CITY OF DUBUQUE, Appellant

Supreme Court of Iowa, Des Moines

January 28, 1904

Appeal from Dubuque District Court.--HON. FRED O'DONNELL, Judge.

ACTION to recover for injuries received by plaintiff's intestate, a boy of about nine years of age, who fell from a sidewalk in the business part of defendant city to the gutter, and died immediately as a result of such fall. There was a verdict for the defendant. The court, on plaintiff's motion, granted a new trial, and defendant now appeals from that order.

Affirmed.

G. A Barnes and J. B. Powers for appellant.

P. C Murray and McCarthy, Kenline & Roedell for appellee.

OPINION

MCCLAIN, J.

The first contention for appellant is that the notice of the injury given within thirty days was not such as is required under Code, section 1051, which provides that such notice shall state the "nature and cause of such injury or damage, and the time when, and the place where, such injury occurred, and the particular defect or negligence of the city or its officers which it is claimed caused or contributed to the injury or damage." The notice is sufficiently specific as to the place and time of the injury. As to the nature and cause of the injury, and the particular defect or negligence of the city or its officers which caused or contributed to the injury, the notice states substantially that while deceased was walking on the sidewalk at the place described, and while using such sidewalk as was his legal right, he was precipitated from the sidewalk into the street; that his neck was broken by the fall, and death resulted almost instantaneously; that at said point the street is, and has been for several years, curbed, graded and macadamized; that, after the improvement thereof, the sidewalk at the place described stood about eighteen inches or more above the curb line, such curb line being the established grade; and that such sidewalk was negligently allowed to remain in such dangerous condition up to the time of the accident. The objection is that this notice does not state the nature and cause of the injury, nor the defect or negligence which caused or contributed to the injury, and therefore, as a matter of law, the plaintiff could not recover if a new trial were granted. We cannot agree with this contention. The notice does state the negligence of which complaint is made, to wit, allowing the sidewalk to be so far above the grade of the street that injury was likely to result to one falling from the sidewalk to the street below. The nature of the injury was stated. The cause of the injury was alleged to have been this negligent condition (assuming that the jury would find that to allow the sidewalk to be in this condition was negligence) which rendered a fall from the walk to the street dangerous, and in this case fatal.

The trial court proceeded on the theory that the city would not have had a right to erect a barricade along the sidewalk at the place in question, which was in front of a business house, for the purpose of preventing persons passing along the sidewalk from falling to the street below. We need not determine the correctness of the view of the trial court on this question. Failure to maintain a proper barricade or railing was not the defect complained of in the notice. Now, if a person should, in the dark, step off at the side of a walk which he had reason to believe was not so high from the street as to make his act in stepping off dangerous, and should be injured by reason of the negligence of the city in having the walk so high above the grade of the street as to be likely to cause an injury in thus stepping off, how could the nature and cause of the injury, or the particular defect or negligence complained of, be more accurately described than in this notice? The statutory requirement as to notice must be reasonably construed with reference to the purpose for which it was enacted. "The object of the statute is to apprise the city authorities of the location of the defect and the circumstances attending the accident with such reasonable certainty as shall enable them not only to investigate the city's liability while the facts are fresh, but also to ascertain what evidence there may be of the conditions then existing, and the character of the injury, while witnesses are at hand." Giles v. Shenandoah, 111 Iowa 83, 82 N.W. 466. And see Sachs v. Sioux City, 109 Iowa 224, 80 N.W. 336. It seems to us that the notice sufficiently states facts which, if established, might render the city liable. It is not necessary for us to determine how far other facts and circumstances tending to show how the accident happened, and the defective condition of the walk, may be proven under such a notice. If the defective condition of the walk which was described contributed, with other causes, to the...