Shumway v. City of Burlington
| Decision Date | 17 May 1899 |
| Citation | 79 N.W. 123,108 Iowa 424 |
| Parties | RETURN U. SHUMWAY, Appellant, v. CITY OF BURLINGTON, IOWA |
| Court | Iowa Supreme Court |
Appeal from Des Moines District Court.--HON. JAMES D. SMYTH, Judge.
ACTION at law to recover for personal injuries alleged to have been caused by negligence on the part of the defendant. A jury was impaneled, and when the plaintiff had submitted his evidence the court directed a verdict for the defendant, and rendered judgment in its favor for costs. The plaintiff appeals.
Reversed.
E. S Huston for appellant.
George S. Tracey for appellee.
The evidence tended to show the following: About 9 o'clock on the evening of March 3, 1897, the plaintiff, while exercising proper care and caution, fell on a sidewalk of the defendant and received injuries for which he seeks to recover. Water had been for several years accumulated on adjacent premises, flowing thereon from a well or spring, and was discharged through a hole in a fence, cut for that purpose, over the walk at a place where the accident occurred. The walk was laid on a street curbed, guttered, paved and sewered with brick, and was made of boards twelve feet long and two inches thick, laid crosswise on stringers on the surface of the ground. The walk sloped towards the center of the street, the side or edge next to the fence being ten inches higher than the other. There was also evidence which tended to show that such a walk would last for from six to eight years, when it would have to be renewed. After submitting the evidence referred to, the plaintiff offered in evidence an ordinance of the defendant adopted in March, 1887, which contains the following: "No person shall lay or cause to be laid any sidewalk on any street which has been macadamized, curbed, and guttered, unless the same shall conform to the established grade of the street so improved; the outer edge of the walk so laid shall not be more than six inches above the top of the curbstone, and shall have a descent from the line of the lot towards the street of three inches,--without obtaining permission from the city council." The court sustained an objection to the ordinance, and it was not introduced. The plaintiff also submitted evidence which tended to show that at the time of the accident, and for several hours before it occurred, the temperature was so cold as to freeze water, and that early in the following morning there was a body of ice directly in front of the hole in the fence, which was about three feet wide near the hole, narrowing to the outer edge of the walk, where it was from six inches to one foot in width. The ice was thickest in the middle, and sloped to a thin edge on each side. The plaintiff did not show that any one saw ice at about the time of the accident at the place where he fell.
I. The plaintiff complains of the ruling of the court which excluded the ordinance. The evidence which had been admitted when that was offered tended to show that it was adopted before the walk was built. The ordinance was offered in evidence as tending to show that the walk was not constructed in a proper manner. It was the duty of the defendant to require that the public sidewalks within its limits be so constructed as not to expose people who should use them to unnecessary dangers. In the exercise of the power conferred upon it, the ordinance was adopted, and we are of the opinion that it was admissible as evidence tending...
To continue reading
Request your trial
-
Jordan v. City of Lexington
... ... condition of the sidewalk in question and negligence in ... relation thereto. Shumway v. Burlington, 108 Iowa ... 424, 79 N.W. 123; Indianapolis v. Gaston, 58 Ind ... 224; Aurora v. Pennington, 92 Ill. 564; Herries ... v. Waterloo, ... ...
-
Doran v. Waterloo, Cedar Falls & Northern Ry. Co.
... ... Waterloo to Cedar Falls and Waverly, respectively. Broadway ... is a public street in the city of [170 Iowa 617] Waterloo and ... runs east and west. About 300 feet east of Broadway, the ... a question of law but a question of fact, and is, therefore, ... for the jury. See Shumway v. Burlington, 108 Iowa ... 424, 427, 79 N.W. 123; Balhoff v. Ry. Co., 65 N.W ... ...
-
Doran v. Waterloo, C. F. & N. Ry. Co.
...and in not providing against it, is not a question of law, but a question of fact, and is therefore for the jury. See Shumway v. Burlington, 108 Iowa, 427, 79 N. W. 123;Balhoff v. Railway Co., 106 Mich. 606, 65 N. W. 592. It is no answer to say that the master did not know that climatic con......
-
Hodges v. City of Waterloo
...the jury would have been justified in holding defendant liable upon this count (Ford v. City of Des Moines, supra; Shumway v. City of Burlington Iowa] 79 N. W. 123), unless, as defendant claims, it is relieved from liability because of having adopted a plan prepared by a competent engine......