Sizer v. City of Estherville

• Decision Date: 10 April 1912
• Citation: 135 N.W. 603
• Parties: SIZER v. CITY OF ESTHERVILLE.
• Court: Iowa Supreme Court

135 N.W. 603

SIZER

v.CITY OF ESTHERVILLE.

Supreme Court of Iowa.

April 10, 1912.

Appeal from District Court, Emmet County; A. D. Bailie, Judge.

“Not to be officially reported.”

Action to recover damages resulting from injuries caused by a defective sidewalk. Judgment was entered against defendant, from which it appeals. Affirmed.Byron M. Coon, of Estherville, for appellant.

N. J. Lee, of Estherville, for appellee.

PER CURIAM.

Main street, in Estherville, which extended east and west, is intersected by Fifth and Sixth streets. There had been a board walk along the north side of Main street, between these intersecting streets; but in 1907 the city ordered the board walk replaced by a permanent cement sidewalk. The permanent walk was laid as required, except the west 42 feet in length fronting the building known as the “fire station.” The surface of the cement walk was about 8 inches lower than the old board walk. At the west end plank had been laid from the board walk slanting to the street. At the east end a plank had been nailed to the end of the stringers of the walk, where it joined the cement sidewalk. Lincoln street runs parallel and one block south of Main street, and is the principal thoroughfare of the city. At about 10 o'clock in the evening of May 16, 1909, the plaintiff left home with an 11 year old son to visit her family physician, who resided on Seventh street. In doing so she walked along Lincoln street, and, quoting from her testimony: “We turned north on Fourth street, until we came to Main street, and then turned east, and went up that street, and when we got there by the fire house, where the step is, I did not know it was there, and was just walking right along, and stepped right off from it. Is that what you want me to tell? I thought I had broken my neck right here, and shaken my back all to pieces. I pitched, as I stepped off, of course. I went forward, and I tried to gather myself up the best I could, and I plunged along a few steps and straightened up some way. No, sir; I did not fall clear down.”

The condition of the street, as said, is not in dispute, and, as it had so continued for about two years, the question as to whether defendant was negligent was for the jury. Nor is there any doubt about the issue of contributory negligence also having been properly submitted to that body. On Lincoln street there was a sidewalk 12 feet wide and the street was well lighted. She might have gone that way. But she was...