Templin v. Incorporated City of Boone

• Decision Date: 10 March 1905
• Citation: 102 N.W. 789,127 Iowa 91
• Parties: W. D. TEMPLIN, Appellee, v. THE INCORPORATED CITY OF BOONE, IOWA, Appellant
• Court: Iowa Supreme Court

102 N.W. 789

127 Iowa 91

W. D. TEMPLIN, Appellee, v. THE INCORPORATED CITY OF BOONE, IOWA, Appellant

Supreme Court of Iowa, Des Moines

March 10, 1905

Appeal from Boone District Court.--HON. J. H. RICHARD, Judge.

ACTION at law to recover damages for injuries received by plaintiff due to a fall upon one of the walks of the defendant city. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

D. G Baker, for appellant.

Dyer & Hull, for appellee.

OPINION

DEEMER, J.

Plaintiff, who lost a limb during the Civil War, and who has since that worn an artificial one, slipped and fell upon a sidewalk in one of the streets of defendant city, and received the injuries of which he complains. He charges that about ten days prior to the time of the accident, which was on the morning of January 4, 1903, the city permitted an accumulation of snow and ice upon the sidewalk, which it negligently allowed to become and remain in a rough, rounded, irregular, and unsafe condition, dangerous to persons using said walk, and hazardous to all passersby. Defendant denied all negligence, and claimed, in effect, that the defect, if there was one, was due to a fall of rain and sleet on the evening preceding the accident, over which it had no control; and further insisted that plaintiff was guilty of contributory negligence in his attempt to pass over the walk. In answers to special interrogatories, the jury found that there had been an accumulation of ice and snow at the place of accident for an unreasonable length of time; that defendant had notice of the dangerous condition of the sidewalk prior to the time plaintiff received his injuries; and that he (plaintiff) was not guilty of contributory negligence.

For a reversal of the judgment defendant relies upon three propositions: (1) That there is no evidence of its negligence; (2) that plaintiff did not show freedom from contributory negligence; and (3) alleged errors in the instructions of the trial court.

I. As to the first proposition, defendant contends that the unsafe condition of the walk was due to a thaw on the afternoon and evening of January 3d, the falling of rain and sleet on the evening of that day, and freezing weather during the night, for none of which things it was responsible; while plaintiff insists that the primary cause of the accident was the rough, irregular, and rounded condition of the walk, due to defendant's failure to remove the snow and ice therefrom, which condition had existed for many days prior to the accident.

The rules of law in such cases are well understood. The mere fact that a sidewalk is dangerous because of the presence of ice and snow is not sufficient to establish negligence on the part of a city, even though this snow and ice are not removed within a reasonable time. But where, by reason of travel or the action of the elements, it becomes rounded or worn into ridges, uneven and irregular, due care on the part of the city may demand its removal. Huston v. City, 101 Iowa 33, 69 N.W. 1130, and cases cited. And if the city be negligent in allowing ice and snow upon its sidewalks to become and remain in a dangerous and unsafe condition, it cannot avoid liability for injuries received thereon, by showing that the iciness or slippery condition of the walk was caused by natural causes, as by rain or sleet or sudden changes of the weather. If the accident would not have happened but for the previous rough, uneven, and rounded condition of the walk, due to the presence of ice and snow thereon, then the city may be liable, although there is another irresponsible condition concurring with defendant's fault in producing the injury. Salzer v. City, 97 Wis. 471 (73 N.W. 20); Langhammer v. City, 99 Iowa 295, 68 N.W. 688; Collins v. City, 32 Iowa 324; Shumway v. City, 108 Iowa 424; Ford v. City, 106 Iowa 94, 75 N.W. 630.

Now the evidence shows that the walk in question was some inches lower than the lot on the one side and the parking upon the other; that large trees had been left close to the walk, with good-sized, cone-shaped pieces of earth around the trunks; that snow had fallen upon the sidewalk many days prior to the accident, which had not been removed; that people traveling over the walk had made a beaten path through...