Stevens v. City of Chariton

• Decision Date: 27 June 1918
• Docket Number: 32039
• Citation: 168 N.W. 310,184 Iowa 59
• Parties: SUSAN M. STEVENS, Appellee, v. CITY OF CHARITON, Appellant
• Court: Iowa Supreme Court

168 N.W. 310

184 Iowa 59

SUSAN M. STEVENS, Appellee, v. CITY OF CHARITON, Appellant

No. 32039

Supreme Court of Iowa, Des Moines

June 27, 1918

Appeal from Lucas District Court.--SENECA CORNELL, Judge.

ACTION to recover damages consequent upon a fall, resulted in a judgment for the plaintiff. The defendant appeals.

Affirmed.

J. W Kridelbaugh, for appellant.

C. F Wennerstrum and William Collinson, for appellee.

LADD J. PRESTON, C. J., EVANS and SALINGER, JJ., concur.

OPINION

LADD, J.

I.

Court Avenue of the city of Chariton extends east and west. In the sidewalk, four feet in width and on the north side thereof, between Sixth and Seventh Streets, as is alleged, there was allowed by the defendant, during November, 1915, and the year previous, "to exist a dangerous place in said sidewalk, due to a demolition of a prior existing sidewalk, upon which were scattered loose and broken bricks, and bricks protruding from an uneven surface of the ground, the ground at the time of the accident herein complained of being frozen and irregular and uneven, said condition existing on the south side of Lot 26 of Eikenberry & Stewart's Addition" to said city, of which condition the officers of the city had long been aware. It is further alleged that, on November 29, 1915, at about 2:30 o'clock in the morning, plaintiff, with her niece, while passing in front of said Lot 26, stumbled over said loose bricks and rough and uneven surface and the protruding brick, and fell, at a point approximately 139 feet west from the curb line of Sixth Street, and on the south side of Lot 26, seriously injuring her. The answer was general denial.

The evidence tended to show that Mrs. Stevens, with her niece, arrived at the depot of the Chicago, Rock Island & Pacific Railway Company in Chariton at about two o'clock in the morning; and, as the omnibus was loaded, and the train on the Chicago, Burlington & Quincy Railway Company's line was due for Osceola in about a half hour, they undertook to walk to the depot of the latter company, and, as they were passing in front of Lot 26, aforesaid, plaintiff fell.

The jury, in answer to special interrogatories, found that there was no brick sidewalk in front of Lot 26, and none "which would permit of two persons walking thereon side by side." Counsel for appellant contends that these answers were inconsistent with the verdict, for that, under the undisputed evidence, the plaintiff must have been injured while walking on a sidewalk, and, therefore, motion for judgment notwithstanding the verdict should have been sustained; and in any event, a new trial should have been granted. Disposing of the contention that judgment should have been entered non obstante, we have to observe that the petition, as seen, does not allege the existence of a sidewalk, and neither the evidence nor the special findings are inconsistent therewith. It is said, however, that, under the undisputed testimony, the injury must have been suffered when walking on a brick walk, and hence elsewhere than in front of Lot 26. If so, plaintiff would not be entitled to judgment non obstante, for resort may not be had to the evidence as a basis for such a motion. Schulte v. Chicago, M. & St. P. R. Co., 114 Iowa 89, 86 N.W. 63. But, if the evidence were contrary to the special findings, this might constitute ground for new trial. A review of the evidence discloses that there was no such inconsistency. The plaintiff testified:

"Here this loose brick, or whatever it was, threw me down, and that is as far as I know. * * * It was a hard substance of some kind, either brick or stone, in the walk. * * * I stepped on it, my foot. * * * It was a brick walk from the depot to the place. I didn't notice what kind of a walk it was at the time, only I know it was a good walk until we got there. There was a walk leading up there * * * seems like the walk was bad when I fell,--bad walk. Q. What kind of a walk was it? A. Well, it was a brick walk, I should judge. Q. How wide was that brick walk? A. Well, it was wide enough for my niece and me to walk side by side. Q. Both of you were walking on the brick walk? A. Yes, sir. Q. Did you step in a hole on that brick walk? A. I stumbled on a brick. * * * I could see there was a walk there. Q. If the brick hadn't been sticking up there,--that loose brick,--you wouldn't have been injured, would you? A. Well, I don't think I would; if it had been a good walk, I wouldn't have been injured. Q. It was the fact that the brick stuck up there--that you stumbled over that brick--that caused your injury? A. That brick turned my foot when I stepped on it. It throwed me down. If it had been a good walk, I wouldn't have fell. Q. Brick was loose? A. The brick was loose." The witness explained that it threw her down. "Q. Then the brick wasn't in the walk?" She answered that it was in the walk, and, later on, that it was on top of the walk; but, on redirect examination, she said that she did "not make any examination as to the kind of a walk was along there, for the reason that we were trying to get to the other train to catch that. We did not stop to look at the walk or anything. * * * I did not notice the kind of a walk it was * * * did not make any investigation about the place of the accident."

The niece described the place of the fall with reference to the house, and Bradbury testified that bricks were scattered around in there. "They had a walk along the side, and they put one on the other side, and they were scattered all over." Paton, who owned Lot 26, swore that the brick of the walk in front of it had been removed and piled up in the yard and on the parking, except those strung along on the south of the walk line, to walk on. Willoughby described the walk at that place as "rough," and said "there was a walk around the north side of it, three bricks wide, then there were bricks scattered along in the walk;" that "there was no regularity as to where the walk should have been," and that the bricks were "just scattered like someone had thrown them down a little way apart to step on--just scattered them around that way." Pettit declared that "the walk was full of brick from one end to the other, scattered in there irregularly," and that the walk was uneven.

"There were brick placed on the side of the walk line. The brick on the south side of the walk and on the north side of the line of trees. * * * I have had occasion to walk up ...