Smith v. City of Des Moines
| Decision Date | 04 March 1924 |
| Docket Number | No. 35794.,35794. |
| Parties | SMITH v. CITY OF DES MOINES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; O. S. Franklin, Judge.
Action against the defendant City of Des Moines for damages. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.John J. Halloran, Reson S. Jones, Chauncey A. Weaver, and Paul Hewitt, all of Des Moines, for appellant.
Wilson & Shaw and Gillespie & Canfield, all of Des Moines, for appellee.
Appellee was injured about 11 o'clock p. m. on the 23d day of January, 1920, by falling upon an icy sidewalk on East Lyon street in the appellant city. The injuries complained of, which appellee alleges are permanent, are described as an impacted fracture of the left wrist.
[1] But two propositions are relied upon for reversal: One, the refusal of the court to instruct the jury that, “if the ice had formed on the walk in question by reason of snow melting upon the adjacent walk and flowing thereon, the defendant had a right to wait for a change of temperature to remedy the condition caused by such freezing condition without being guilty of negligence, if by reason of climatic conditions such ice was impossible of removal”; and, the other, error in the paragraph of the court's charge relating to the consideration and effect to be given by the jury to mortality tables. The evidence as to the icy condition of the sidewalk is in sharp conflict; but, as indicated, it is not claimed by appellant that the evidence is insufficient to sustain the verdict. The sidewalk in question abutted upon a lot that was considerably higher than the surface of the walk toward which it sloped. The requested instruction is based upon the language of the court in Beirness v. City of Missouri Valley, 162 Iowa, 720, 144 N. W. 628, 51 L. R. A. (N. S.) 218, and cases from other jurisdictions. Evidence was introduced from which the jury may well have inferred that the water from melting snow constantly flowed from the lot upon the sidewalk. The condition of the ice and snow upon the sidewalk is described as having been jagged, rough, and uneven. There was also evidence from which the jury might properly have inferred that it had been accumulating for a considerable length of time. Evidence was offered to the contrary and to the effect that the particular sidewalk was always kept as free from snow and ice as is possible in this climate. The weather preceding the day of the accident was generally cold, but not such as to prevent some thawing and melting of the snow and ice on the walk. We find, however, no evidence in the record that the condition of the walk resulted from snow melting on the adjacent lot. The weather is shown not to have been warm enough for that to have occurred to any considerable extent. Furthermore, no evidence was offered to prove that it was impossible at the time to have remedied the condition of the walk. Therefore, without discussing the requested instruction or expressing an opinion as to its correctness as an abstract proposition of law, we are of the opinion that the state of the record did not call for its application to this case.
[2] II. Mortality tables having been introduced in evidence by appellee, the court instructed the jury that she had an expectancy of...
To continue reading
Request your trial