Thompson v. City of Sigourney, 40752.

• Decision Date: 20 June 1931
• Docket Number: No. 40752.,40752.
• Parties: THOMPSON v. CITY OF SIGOURNEY.
• Court: Iowa Supreme Court

212 Iowa 1348

237 N.W. 366

THOMPSON

v.CITY OF SIGOURNEY.^a1

No. 40752.

Supreme Court of Iowa.

June 20, 1931.

Appeal from District Court, Keokuk County; J. G. Patterson, Judge.

Action for injuries sustained from a fall on a walk. Verdict and judgment for plaintiff. Defendant appeals.

Affirmed.Shaw & Yoder and Harry L. Snakenberg, all of Sigourney, for appellant.

C. J. Lambert, of Sigourney, for appellee.

MORLING, J.

[1] Jefferson street in Sigourney runs northward to the residence of plaintiff and her husband, which is east and at the north end of the street. The property belongs to the husband, but will be referred to as plaintiff's property or residence. A way continues northwardly from the north end of the street proper and west of plaintiff's premises over the property of the Milwaukee Railroad Company. On the east side of Jefferson street is a cement sidewalk extending northwardly to the gate to plaintiff's premises, or a little beyond. Along the south line of the plaintiff's property, extending from Jefferson street eastwardlyto Shuffleton street, is a strip 16 feet in width which for about 20 years before the trial has been used as an alley. It formerly was a part of the property which plaintiff's husband now (but not then) owns. It was acquired by the city in exchange or in substitution for another alley. Plaintiff fell on the walk crossing this alley. Defendant contends that it did not obtain good title to the alley, and that plaintiff has “an equitable interest in the fee” thereto. The contention is irrelevant. The walk in question extending across the west end of the alley, if not a crosswalk, is a sidewalk. In either event, it was defendant's duty to use reasonable care to keep it in repair. See Harrison v. Ayrshire, 123 Iowa, 528, 99 N. W. 132;Dunn v. Oelwein, 140 Iowa, 423, 118 N. W. 764;Kircher v. Larchwood, 120 Iowa, 578, 95 N. W. 184.

Along the east side of Jefferson street is a ditch which for the alley entrance is provided with a culvert and filling.

The walk across the west end of the alley was in good condition until about five years before the trial, when heavy traffic across it broke it up. The north portion of the walk across the alley was entirely removed, but broken pieces having elevations of two to five inches above the surface of the drive remained in the southerly portion. On November 28, 1929 (Thanksgiving Day), plaintiff and her husband drove to another town, returning about 6:30 in the evening. During the day about 100 cars had gone over the alley crossing. Plaintiff's husband stopped the car in which they were riding at a point west of the culvert in order that plaintiff might get out with her baby and proceed to their house 50 or 60 feet away. Plaintiff, with her baby, proceeded over the culvert to the walk across the west end of the alley, and there fell. She says:

“I went down the center of the street there from the culvert and there was a broken uneven surface there and there was a piece of stone lying in the track in that place, I slipped in it and stumbled and fell. * * * It was where there was no walk, where the walk was supposed to be, but there was no walk there and it was an uneven surface there.” She says: “I went around that ditch I was along here and came down here to avoid that ditch (indicating on map). * * * I avoided this here (indicating). That there worse part of the ditch there by the electric light pole. * * * I slipped in there and fell on my toe--stumbled over that stone.” “I had the baby and I was just going as careful and watching my way.

“Q. You knew the shape that that broken concrete was in then before the night of the accident, didn't you? A. Yes, I knew it, but I didn't realize it was so bad.

Q. You knew the shape it was in though, didn't you? A. Not altogether for I never had noticed it.”

The wheel tracks of the vehicles passing into and out of the alley made ruts, the exact condition of which does not appear.

I. The petition alleges that defendant negligently allowed “the sidewalk and crossing to deteriorate, break up into pieces, and to become dangerous and a menace to persons using or attempting to use said crossing, and had allowed surface waters to run across and through said crossing and sidewalk and cut channels of an irregular, uneven, and dangerous angle in said crossing and had negligently failed and refused to repair said sidewalk and crossing in such a way as to render it reasonably safe for the use of the public.” Failure to remove snow is not asserted in pleading or evidence as a ground for recovery. Defendant makes a number of contentions on the assumption that negligence is claimed because of failure to remove ice and snow. These contentions misinterpret the theory of the petition, and are not well founded.

[2][3] II. Defendant further contends that there was no sidewalk at the place of the accident, and the city was under no obligation to construct one. A sidewalk was maintained on the east side of the street and for many years at the particular point in controversy. At that point the walk was still open to the public, and they were impliedly invited to use it as such. Defendant had permitted it to get out of repair. Defendant's duty was to repair. It is not here charged with duty to construct a walk where none was previously in existence.

[4] III. Defendant offered to prove that the grading fund and improvement fund had been overdrawn since January, 1927. The offer was refused. Defendant had the power of taxation and the duty of using reasonable care to maintain its sidewalks in a reasonably safe condition. Manifestly, it could not avoid responsibility for breach of this duty by permitting some or all of its funds to be overdrawn.

[5][6] IV. Defendant argues that its motion for directed verdict became of contributory negligence, which was overruled, should have been sustained. Plaintiff was previously informed of the general condition of the walk at the place where she fell. She could not know of the specific condition at the time resulting from the passage of about 100 vehicles over it during the time she was absent. Defendant's argument is that “She could have walked down the north track, which had been made by the cars as they went in and out of the alley and where the snow had been pressed down. Instead of this however she chose to walk down the middle of the tracks where the going was necessarily rough and the surface of the ground covered with snow, which hid the rough spots in the alley. The path of the north wheel track would have been closer to her gate, and she could have seen any rough and uneven object, because of the fact that the snow had been packed down. She took a longer route, however, and walked directly...