Tobin v. City of Waterloo

• Decision Date: 12 June 1906
• Parties: TOBIN v. CITY OF WATERLOO.
• Court: Iowa Supreme Court

131 Iowa 75

107 N.W. 1031

TOBIN

v.CITY OF WATERLOO.

Supreme Court of Iowa.

June 12, 1906.

Appeal from District Court, Black Hawk County; Franklin C. Platt, Judge.

Action for damages occasioned by falling on the sidewalk. Verdict was directed for defendant, and judgment entered thereon. The plaintiff appeals. Affirmed.Reed & Tuthill, for appellant.

J. E. Williams and B. F. Swisher, for appellee.

LADD, J.

The plaintiff, while passing along a sidewalk on Commercial street in front of lots on which the post office building was being constructed, slipped and fell, breaking her arm. The petition alleged that the sidewalk was covered with snow which had fallen several days previously; that by the continual tramping of pedestrians, it had become rough, rounded, and irregular in formation, and that thawing and freezing weather had rendered it slippery. Counsel for appellee concede in argument that the city was negligent in allowing the walk to be in such condition, and that the jury might have found that it was charged with notice, and also that plaintiff was not guilty of contributory negligence. They insisted, however, that the record is without evidence that plaintiff's fall was caused by the condition of the walk as described. She testified: “I could not tell how much ice there was on the walk. * * * Well, I did not see anything but ice. I know it was very icy where I fell. There was heavy snow where I fell. * * * Q. This ice you slipped upon was smooth ice? A. Well, I could not tell you that. Q. Do you know whether you slipped upon smooth ice or upon snow? A. I know I slipped on ice. I know it was ice. I looked at it. Q. You cannot tell whether it was smooth ice or not, can you? A. Well, I know it was ice. Q. That is all you can say of it? that you fell or slipped on the ice? A. Yes, sir. Q. But you could not tell the jury whether it was smooth ice or rough ice? A. No, I could not, and I know it was on the sidewalk in front of that building. Q. Now, then the fact is, Mrs. Tobin, that you could not tell this jury the nature of the ice you slipped upon, could you? A. Well, I could not say, because I was so badly hurt. Q. As a matter of fact, you don't know just where you fell, so you could tell the jury, do you? A. Why no; I could not tell just where I fell. Q. Was it a block, or knobby? What was it like? A. Well, I could not say positive about that.”

The evidence is conclusive that the plaintiff did not know whether she slipped because of the defective condition of the walk or on smooth ice, and the question presented is whether from the testimony of other witnesses, it may be inferred that the ice was rough where she slipped and fell, and that this was the cause of her fall. Ice and snow accumulated on the walk from natural causes, though slippery because of their smooth surface, is not a defect for which the city may be held responsible. It is only when such ice and snow are allowed to remain upon the walk until, by the tramping of pedestrians, freezing and thawing, or other causes, the surface has become rough, rigid, rounded, or slanting, so that a person, in the exercise of ordinary care, cannot pass over it without danger of falling, that the defect is such as to render the city liable. Broburg v. Des Moines, 63 Iowa, 523, 19 N. W. 340, 50 Am. Rep. 756;Huston v. Council Bluffs, 101 Iowa, 33, 69 N. W. 1130, 36 L. R. A. 211;Sankey v. Railway, 118 Iowa, 39, 91 N. W. 820, where it is said: “No duty rests upon the city to remove the snow...