Tollackson v. City of Eagle Grove
| Decision Date | 05 April 1927 |
| Docket Number | 38117 |
| Citation | 213 N.W. 222,203 Iowa 696 |
| Parties | ANNA TOLLACKSON, Appellee, v. CITY OF EAGLE GROVE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Wright District Court.--G. D. THOMPSON, Judge.
Action for damages growing out of the alleged failure of the city to remove ice from its streets, which failure is alleged to have caused plaintiff to fall and receive injuries. Verdict for the plaintiff. From judgment thereon the city appeals.
Affirmed.
Hobbet & Blue, for appellant.
McGrath Archerd & McGrath, for appellee.
The city of Eagle Grove is a city of between four and five thousand population. Broadway is one of the principal streets of the city, running east and west, and Lucas Avenue crosses Broadway at right angles in the heart of the business district of said city. On the afternoon of the 10th day of December, 1924, appellee, Anna Tollackson, was on the southeast corner of this intersection, traveling in a westerly direction, crossing Lucas Avenue to the southwest corner of the intersection. When she reached a point about ten feet from the said southwest corner of the intersection, she slipped and fell, receiving a fractured hip. Lucas Avenue is paved, and there is no special crosswalk between these two corners, and foot passengers traveled on the pavement.
It appears from the evidence that, on Thursday, December 4th, this city and surroundings were enveloped in a severe sleet storm, with some flurries of snow at different times. This storm continued until the forenoon of Saturday following. There is some dispute in the testimony as to whether there was freezing weather between these times, and there was no showing as to the definite hour when the storm ceased. There is some testimony showing that, during this time from Thursday until Saturday night, there was some freezing weather. Other witnesses deny that there was any freezing weather during this time. However this may be, it is agreed by all witnesses that on Sunday the weather grew much colder, and the thermometer was at zero and below; that the sleet and snow that had fallen were frozen solidly, and continued in that condition until after the accident herein referred to had occurred, the weather remaining cold during all of this time.
Appellee's evidence tends to show that these corners were busy corners, and that, as this snow and sleet fell, it turned into a slush. As the general public traveled this crossing, the snow was tramped, and when it froze, this crossing, from one side of the street to the other, was marked with depressions, leaving footprints in the snow and slush which froze in that condition, thus making the crossing rough, irregular, and uneven. Under the evidence in the case, this was the turning point and battle ground of dispute, the city claiming that, when this snow and slush froze, it was left in a perfectly smooth condition,--in other words, was a smooth glare of ice; and that neither the city nor the traveling public in any way affected the surface of this ice; and, therefore, that the city was not liable. The claim of appellee is, as above stated, that the general public traveling over this particular part of the street made it rough, irregular, and uneven, and that, therefore, the city is liable.
The question of what the actual condition of this street was at the time of the accident being thus in grave dispute, it was a question of fact for the jury. It is equally true that the evidence in the case was sufficient to support the verdict. It is, of course, well settled, under the holdings in this state, that, if this crosswalk was covered with a smooth coating of ice, and was as nature left it, undisturbed by the traveling public thereon, the city would not be liable. Such has been our holding in numerous cases, among which are Ray v. City of Council Bluffs, 193 Iowa 620, 187 N.W. 447, and Eickelberg v. City of Waterloo, 197 Iowa 1219, 198 N.W. 638, which are typical cases under this rule. On the other hand, it is equally as well settled that where, by reason of the travel over the street, or for other causes, the surface of a crosswalk becomes rough, irregular, and uneven on its surface, thus rendering the locality difficult and unsafe for foot passengers, the city is liable for injuries occasioned thereby. Broburg v. City of Des Moines, 63 Iowa 523, 19 N.W. 340; Huston v. City of Council Bluffs, 101 Iowa 33, 69 N.W. 1130. In Tobin v. City of Waterloo, 131 Iowa 75, 107 N.W. 1031, we quoted with approval from Sankey v. Chicago, R. I. & P. R. Co., 118 Iowa 39, 91 N.W. 820, the following:
This is a fair statement of the rule, which has been enounced many times in this state. The appellant claims that the rule is that, when cold follows a melting snow, causing a film of ice on the sidewalks which it is practically impossible to remove, the municipality may, without being guilty of negligence, wait for a change in temperature to remedy the condition. It is true that this statement was made in the case of Beirness v. City of Missouri Valley, 162 Iowa 720, 144 N.W. 628. It is, however purely dictum in that case, and such rule might apply where the ice was as nature left it, undisturbed by artificial means, but we have never enounced that rule as applying to a situation like the one we have before us. Nor would we care to go so far as to acknowledge such to be the rule of this state. This storm, as...
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