Smith v. J. C. Penney Co., 52328

Citation260 Iowa 573,149 N.W.2d 794
Decision Date04 April 1967
Docket NumberNo. 52328,52328
PartiesAlice SMITH, Appellant, v. J. C. PENNEY COMPANY, R. H. Maloney and R. H. Maloney as Executor of the Estate of Florence M. Maloney, Deceased, Appellees.
CourtUnited States State Supreme Court of Iowa

Page 794

149 N.W.2d 794
260 Iowa 573
Alice SMITH, Appellant,
J. C. PENNEY COMPANY, R. H. Maloney and R. H. Maloney as Executor of the Estate of Florence M. Maloney, Deceased, Appellees.
No. 52328.
Supreme Court of Iowa.
April 4, 1967.

[260 Iowa 576]

Page 796

Mahoney, Jordan & Smith, Boone, for appellant.

Cudahy & Wilcox, Jefferson, for appellee J. C. Penney Co., Edward S. White, Carroll, for appellee R. H. Maloney and R. H. Maloney as Executor of the Estate of Florence M. Maloney, deceased.

GARFIELD, Chief Justice.

Alice Smith brought this law action to recover for personal injuries from falling on ice near the rear entrance to a store building in Jefferson leased to defendant J. C. Penney Company by the lower, defendant Maloney, individually and as executor of his deceased wife's estate. Trial resulted in jury verdicts against Penney and in favor of Maloney. On Penney's motion the trial court entered judgment against plaintiff notwithstanding the verdict in her favor. Plaintiff has appealed.

I. In considering the propriety of the ruling appealed from we will view the evidence in the light most favorable to plaintiff.

Generally questions of negligence, contributory negligence and proximate cause are for the jury; it is only in exceptional cases that they may be decided as matters of law. Authorities need not be cited for these propositions.

II. The store building faced north on the northeast corner of the block in the business district of Jefferson. There was a sidewalk along the east side of the building and an east-west alley along its south end. Thirty-two feet west of the sidewalk was the rear entrance to the store which, with the alley, was customarily used by most of the employees, many delivery men and some customers. The manager and assistant manager of the store were fully aware of this custom. The former testified he knew there was quite a little traffic coming in the door. A single concrete step protruded into the alley a foot or more just beneath the entrance door.

Plaintiff, then age 47, had been employed by Penneys as a saleslady about 12 1/2 years prior to the morning of January 28, 1963, when she walked south on the sidewalk to the alley and then turned west toward the rear entrance. Mrs. Richmodn, [260 Iowa 577] another employee, preceded plaintiff. They 'picked their way' carefully toward the step. The alley was very slick with ice and packed snow. Mrs. Richmond reached the step. As plaintiff was ready to step onto it she fell on ice, broke her ankle in three places and dislocated the joint.

Plaintiff's feet were within two or three feet of the step and a like distance from the south wall of the building. There were two tracks made by trucks in the packed snow and ice in the alley. There is evidence plaintiff's feet when she fell were north of the north track.

The front entrance to the store was ordinarily not unlocked until 9 when plaintiff was usually in the store ready to wait on customers. Her fall occurred about 8:50.

Page 797

There is evidence the ice near the back step did not result from matural conditions but from snow that melted and dripped from four awnings over the rear windows and from the roof or eavetroiughs., Some of the ice may have formed from water from nearby buildings. Plaintiff testified that on January 28 and the day just preceding it icicles were hanging from the awnings and they would drip on the warmer days. It had been warmer, with thawing, a few days earlier. Temperature was 30 degrees on January 22.

A partner in an auto body shop across the street from the rear of the Penney store went to plaintiff's aid as soon as she fell. Asked whether he made observations as to where the water came from that formed the ice where plaintiff fell, he testified, 'It could have come from anywhere but it looked to me like it would have to come from the Penney store because it was right by the step.' The witness pointed out that water from other buildings would probably go down the center of the alley which was lower, rather than toward the side where plaintiff fell.

A woman employed at Penneys at the time of the accident said she observed the alley that morning was real slick, very icy. 'Whenever there was snow on the building there was ice up around the door and step.' There is much testimony that in an earlier winter so much ice and snow accumulated on an awning it was pulled away from the building and Mr. Maloney had to replace it.

[260 Iowa 578] The manager of the store testified he had 'scooped' snow from around the step and the step itself, although he did not consider it his responsibility to do so, and had removed ice from the awnings. The assistant manager said he tried to clear the snow off 'around there' every time it snowed. He did not recall how long prior to January 28 he had done so. He did recall that at times there were ice and icicles on the awnings from which water dripped.

About 20 years earlier, before he leased the building to Penney, defendant Maloney installed eavetroughs which drained through a downspout into a storm sewer at the southwest corner of the building. Since then he had observed ice and snow accumulations on the roof and awnings and icicles hanging on the awnings. He recalled the time prior to January 28, 1963, when ice and snow on an awning pulled it away from the building and it had to be replaced. 'In extremely cold weather the system freezes up.' Minimum temperatures were below zero for several days before the 28th. There is evidence the eavetroughs and downspout did not drain all the water formed from the snow on the roof.

No sand, salt, or other abrasive material had been placed on the area near the step.

III. The court, erroneously as we believe, sustained objections as incompetent, irrelevant and immaterial to plaintiff's offer of evidence that a prior Penney manager had instructed employees to use the back door in coming to work mornings; plaintiff had no keys to the front door; and another woman employee slipped and fell on the ice in the alley at the rear of the store two days before plaintiff fell.

The rule is well settled in Iowa, at least commencing with Lindquist v. Des Moines Union Railway Co., 239 Iowa 356, 367--369, 30 N.W.2d 120, 126, that evidence of former accidents at a place is admissible to show its dangerous character and knowledge thereof if conditions are substantially similar or comparable and they are not too remote. Christianson v. Kramer, 257 Iowa 974, 977, 978, 135 N.W.2d 644, 646, 647, and citations. We think the offered evidence here meets this test. There is evidence of sufficient similarity of conditions.

[260 Iowa 579] In passing on the sufficiency of the evidence we have considered that offered by plaintiff and improperly excluded by the court. Iowa Electric Co. v. Home Insurance Co., 235 Iowa 672, 676, 677, 17

Page 798

N.W.2d 414, 416, and citations; Brown v. Schmitz, 237 Iowa 418, 424, 22 N.W.2d 340, 343; Sjulin v. Clifton Furniture Co., 241 Iowa 761, 768, 41 N.W.2d 721, 726; Ferris v. Employers Mutual Cas. Co., 255 Iowa 511, 522, 122 N.W.2d 263, 269--270.

IV. The court submitted to the jury two of many pleaded grounds of negligence as against defendant Penney: (1) Failing to provide reasonably safe premises and approaches thereto for persons such as plaintiff, and (2) Failing to use reasonable care to remove ice from the approach to the rear door or to put sand, ashes or some substance on it to make it safe to walk over.

A single ground of negligence was submitted as against defendant Maloney: Failing to maintain the leased premises and approaches thereto in a safe and suitable condition.

In entering judgment for Penney notwithstanding the verdict against it the court ruled no actionable negligence was shown since plaintiff had as much knowledge of the icy condition of the alley as Penney did, citing Atherton v. Hoenig's Grocery, 249 Iowa 50, 54, 86 N.W.2d 252, 255, which was evidently thought to be controlling. We first consider whether, as plaintiff asserts, this ruling was error.

V. Cities and towns have the care, supervision and control of all public streets and alleys and the duty to keep them open and free from nuisances. Section 389.12, Codes 1962 and 1966. The duty thus imposed does not, however, relieve property owners or others from the duty not to obstruct them so as to endanger the safety of the public rightfully using them nor from liability for damage occasioned thereby. This rule has been applied in many cases under a great variety of facts. It is elementary that the owner or occupant of a building abutting a public way may not lawfully collect water accumulating from rain or snow upon the roof and by some artificial means discharge it upon the street or sidewalk, where it freezes and forms ice. Nor may be negligently permit the water to escape [260 Iowa 580] from a defective downspout or other agency and accumulate upon the sidewalk and cause injury to others. Updegraff v. City of Ottumwa, 210 Iowa 382, 384, 226 N.W. 928, 929, citing numerous authorities.

The owner or occupant or premises abutting a public way is under no obligation to keep the sidewalk free from snow or ice which came there from natural causes. However, where he maintains his premises in such a manner that ice forms on the adjacent walk as the result of artificial rather than natural causes, liability to one falling thereon may result. Mutzel v. Northwestern Bell Telephone Co., 247 Iowa 14, 18, 72 N.W.2d 487, 489 and citations.

Beyer v. City of Dubuque et al. (1966) 258 Iowa 476, 139 N.W.2d 428, 430--432 is much like the present case except there plaintiff fell on an icy sidewalk, rather than an alley, near a downspout from roof gutters which were inadequate or defective, causing water to drip or leak onto the walk. This water, together with water from natural sources, formed ice on which plaintiff fell. We held the evidence presented a jury issue as to liability of the owner...

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