Sylvester v. Town of Casey

• Decision Date: 19 January 1900
• Parties: G. W. SYLVESTER v. THE INCORPORATED TOWN OF CASEY, Appellant
• Court: Iowa Supreme Court

81 N.W. 455

110 Iowa 256

G. W. SYLVESTER v. THE INCORPORATED TOWN OF CASEY, Appellant

Supreme Court of Iowa, Des Moines

January 19, 1900

Appeal from Guthrie District Court.--HON. JAMES D. GAMBLE, Judge.

ACTION to recover for personal injuries, caused by a fall on a defective sidewalk. From a verdict and judgment in plaintiff's favor, defendant appeals.

Reversed.

F. H Noble and J. D. Brown for appellant.

C. A Berry and Sever & Neal for appellee.

WATERMAN J. GRANGER, C. J., not sitting.

OPINION

WATERMAN, J.

Logan street is an east and west highway in the town of Casey, which is crossed at right angles by McPherson street. At the southwest corner of these two streets is a business block belonging to one Valentine, and in front of this block, on Logan street, is the walk of which complaint is made. The west ten feet of this piece of walk are laid upon an incline, the descent towards the west in this distance varying according to witnesses from ten inches to nearly or quite two feet. The walk was constructed of boards laid transversely, except that on this incline a trap door some nine feet long was set in the walk next the building, and this was constructed of boards running lengthwise with the walk. This trapdoor was hung on ordinary strap hinges that were laid on the surface of the boards. Plaintiff claims to have been permanently injured by slipping and falling on this incline on the third day of March, 1896.

I. No complaint is made in argument of the finding that the town was negligent in maintaining this walk; so we may accept that element of plaintiff's case as established. It is, however, strenuously insisted that plaintiff was guilty of contributory negligence. The walk was upon a business street. Plaintiff was familiar with it, having passed over it many times before. A very light snow had fallen a night or two before the accident, which occurred about noon. Plaintiff says he noticed the walk as he attempted to pass over it; that there was nothing to distract his attention, and that he could and did see its condition; that other persons appeared to have used it that day, and worn most of the snow off. As he stepped on the incline, he slipped and fell. There is evidence to show that he could have left the walk, and gone into the street, ten to fifteen inches below, and passed around this declivity. On this state of facts it is argued, on the authority of Parkhill v. Town of Brighton, 61 Iowa 103, 15 N.W. 853, and kindred cases, that plaintiff was guilty of contributory negligence as matter of law in attempting to use this walk. But it will be observed that one element involved in those cases is absent here. It does not appear that plaintiff knew there was danger in passing down this incline. The instruction in Parkhill v. Town of Brighton which we held it was error to refuse, founded the obligation of plaintiff to take another way, if a safe and convenient one were open, not upon his knowledge alone of the defect, but also upon his appreciation of its danger. This element is to be found in all the succeeding decisions which follow that case. See McGinty v. City of Keokuk, 66 Iowa 725; Walker v. Decatur County, 67 Iowa 307, 25 N.W. 256; Fulliam v. City of Muscatine, 70 Iowa 436, 30 N.W. 861; Hartman v. City of Muscatine, 70 Iowa 511; Dale v. Webster County, 76 Iowa 370, 41 N.W. 1; Kendall v. City of Albia, 73 Iowa 241, 34 N.W. 833; Barnes v. Town of Marcus, 96 Iowa 675, 65 N.W. 984; Homan v. Franklin County, 90 Iowa 185, 57 N.W. 703. In Walker v. Decatur County, cited above, this court said, with relation to an instruction asked: "The thought of the instruction is that, if there was another road, which was safe and convenient, and the plaintiff knew the bridge in question was unsafe, then the plaintiff was, as matter of law, guilty of contributory negligence. The instruction goes much further than the one approved by this court in the Parkhill Case; for in that case the jury was required to find that it was imprudent for plaintiff to go over the walk, which he knew to be dangerous, and in this will be found the vice of the instruction under consideration." After citing some cases, the court proceeds: "It is possibly true that in none of the foregoing cases does it affirmatively appear that there was another safe and convenient way. But it is obvious, we think, that this fact cannot change the rule; for, as the bridge in question was open for travel, the material inquiry is whether the plaintiff, in making the attempt to pass over it, acted with ordinary care and caution." Again, in Kendall v. City of Albia, supra, where it was shown that plaintiff had previous knowledge of the existence of the defect by which he was injured, and the question of contributory negligence was submitted in an instruction to the jury, we said: "This instruction is objected to on the ground that the court should have held as matter of law that the plaintiff was guilty of contributory negligence, because, knowing the walk to be unsafe, he did not cross the street, as he might have done with safety. This, we think, is a mistake, and that it was proper to submit the question to the jury." See, also, Rice v. City of Des Moines, 40 Iowa 638. It is true that in some cases the nature of the defect is such that we will hold a plaintiff who knows of its existence to an appreciation of its risk and danger, as matter of law. This was done in Cosner v. City of Centerville, 90 Iowa 33, 57 N.W. 636. In the case at bar there was no evidence to show that plaintiff regarded the walk as dangerous, or considered it imprudent to go upon it, at the time he did; nor are we able to say from the facts that such knowledge should be imputed to him. The question of his negligence in this regard was properly left to the jury. Barce v. City of Shenandoah, 106 Iowa 426, 76 N.W. 747, is not in conflict with this position, for it is there found that plaintiff, when she used the walk, not only knew of the defect, but had knowledge of the danger in so passing over it.

II. Complaint is made of the trial court's refusal to give an instruction asked by defendant with relation to the effect to be given by the jury to the fact that plaintiff was intoxicated at the time of the accident. There was evidence tending to show this fact. The instruction is quite lengthy. We need set out but a single sentence. The jury was told "Intoxication is evidence of contributory negligence, and from it alone you may infer contributory negligence." We regard this as an incorrect statement of the law. Unless it appears to have been negligent for plaint...