Smith v. City of Hamburg, 40640.
| Decision Date | 20 June 1931 |
| Docket Number | No. 40640.,40640. |
| Citation | 212 Iowa 1022,237 N.W. 330 |
| Parties | SMITH v. CITY OF HAMBURG. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Fremont County; H. J. Mantz, Judge.
Action to recover damages for personal injury suffered by the plaintiff by reason of a fall upon an icy sidewalk in the defendant city. Trial to the court and a jury. Verdict and judgment for the plaintiff. The defendant city appeals.
Affirmed.John F. Porterfield, of Hamburg, and Thornell, Thornell & Adams, of Sidney, for appellant.
Ferguson & Ferguson, of Shenandoah, and Vernon Johnson, of Sidney, for appellee.
At the close of plaintiff's evidence, the defendant city moved for a directed verdict, upon the ground that the plaintiff has failed to show that he was free from contributory negligence, and that it is shown by the evidence that he was guilty of contributory negligence as a matter of law. This motion was overruled. The motion was renewed at the close of all of the evidence and again overruled. The appellant complains that the court erred in said rulings, and this is the sole matter presented to this court by the appellant.
[1][2][3][4][5] In order to constitute contributory negligence, the plaintiff, at the time in question, must have done something which an ordinarily careful and prudent person, under the same or similar circumstances, would not have done, or failed to do something which an ordinarily careful and prudent person, under the same or similar circumstances, would have done, and which negligent act or failure to act contributed to his injury. The rule is well established that, when reasonably honest minds, having before them all of the facts upon the question of contributory negligence, could reach but one conclusion, the question then becomes one of law for the court; but if, under the proven or admitted facts, different minds might reasonably reach different conclusions, the question is then one of fact for the determination of the jury. Dreier v. McDermott, 157 Iowa, 726, 141 N. W. 315, 50 L. R. A. (N. S.) 566;Barnhart v. Chicago, Milwaukee & St. Paul Railway Company, 97 Iowa, 654, 66 N. W. 902. The burden is upon the plaintiff to prove freedom from contributory negligence. As a general rule, the question of contributory negligence is one for the jury. See Burke v. Town of Lawton, 207 Iowa, 586, 223 N. W. 397;Lundy v. City of Ames, 202 Iowa, 100, 209 N. W. 427. It is also true that, for the determination of the question before us, the evidence must be construed as a whole in the light most favorable to the plaintiff. The appellant relies for a reversal upon Lundy v. City of Ames, 202 Iowa, 100, 209 N. W. 427. In said case it was shown that the plaintiff approached a familiar condition in the sidewalk where there was an icy slope which he knew was dangerous, and which he said he thought he could get over safely. The evidence in said case discloses that at the time he was walking at an ordinary gait, that he was not thinking about the sidewalk, and that he did no act or thing to avoid injury on the slippery and slanting place which he knew he was about to cross. There was no proof as to the manner in which he attempted to cross it, except that he went at an ordinary walk.
The appellee relies for affirmance upon Burke v. Town of Lawton, 207 Iowa, 586, 223 N. W. 397, and Fosselman v. City of Dubuque (Iowa) 233 N. W. 491. The facts in the Lundy Case are clearly distinguishable from the facts in the Lawton Case, as therein clearly pointed out, and the facts in the Lundy Case upon which the appellant herein relies are also clearly distinguishable from the facts in the instant case.
[6] We will now refer to some of the testimony which we think clearly makes the instant case a question for the jury. As we proceed, it must be borne in mind that there is no question as to negligence on the part of the defendant city presented for our determination; that the only question presented is as to contributory negligence on the part of the plaintiff. Argyle and Main streets run north and south in the defendant city, Main street being the next street east of Argyle street. Main street is paved from the business portion of the city south to the depot; Argyle street to the west is not paved. At and for some time prior to the accident, the plaintiff resided nine blocks south of the business portionof the city, his residence being the second house from the corner and on the east side of Argyle street. There was a walk on the west side of Argyle street leading north, but no walk on the east side of said street from plaintiff's place of residence toward the business portion of the city. In going from plaintiff's residence to the business district it was his usual practice to go from his residence through the alley about a block to the west side of Main street, where there was walk leading to the business district, and it was also his practice in returning from his work to travel the same route. This route usually traveled by him was the most direct route from his home to the business portion of the city. The accident occurred about 6:30 p. m. on January 10, 1929. The weather was very cold at that time and for a week or more prior thereto, and snow which had previously fallen, and which had not been removed, was frozen upon the walk. The accident occurred on the walk at the boundary line of the Sullivan and Warnstaff properties. Immediately south of the boundary line of said properties there is a driveway leading from Main street to the Sullivan garage. At the sidewalk there is a raise of...
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