Townsley v. Sioux City

• Decision Date: 11 March 1969
• Docket Number: No. 53330,53330
• Citation: 165 N.W.2d 523
• Parties: Philip TOWNSLEY, Appellant, v. SIOUX CITY, Iowa, a Municipal Corporation, Appellee.
• Court: Iowa Supreme Court

Page 523

165 N.W.2d 523

Philip TOWNSLEY, Appellant, v. SIOUX CITY, Iowa, a Municipal Corporation, Appellee.

No. 53330.

Supreme Court of Iowa.

March 11, 1969.

Fred S. Nordenson, Sioux City, for appellant.

Paul A. Mahr, Sioux City, for appellee.

STUART, Justice.

Plaintiff was injured in a fall on a defective public sidewalk in Sioux City. His cause of action was tried to the court which found plaintiff's own negligence was a proximate cause of his fall and resulting injuries and entered judgment for defendant. Plaintiff has appealed claiming there is no evidence to support such finding and therefore the decision is contrary to law.

The decision of a trial court sitting as a trier of the facts has the force and effect of a jury verdict, Houlahan v. Brockmeier, 258 Iowa 1197, 1200, 141 N.W.2d 545, 547, and the findings of fact are binding on us if supported by substantial evidence, R.C.P. 344(f)(1). The fact defendant introduced no evidence in its own behalf is of no importance if the decision is supported by plaintiff's evidence.

About 8:00 in the evening on August 1, 1963, while it was still light, plaintiff, age 40, and his wife walked to a neighbor's home where their daughter and her boyfriend were visiting. There were two homes and two or three vacant lots between plaintiff's home and their destination.

The sidewalk in front of the vacant lots was uneven and badly broken and cracked in at least two places where the roots of large elm trees had raised the walk. Plaintiff had lived in this location about four years and, although this was the first time he had been to Tonner's house, he was familiar with the condition of the walk. Plaintiff testified: 'We got from my house up to the Tonner's house that evening by walking around the side of the sidewalk on the lot. The empty lot alongside of the sidewalk. I didn't traverse up the sidewalk itself proper. I went alongside in the vacant lot area. That's where I walked. That was because of the broken sidewalk. I don't like to walk on an uneven sidewalk any more than you do.'

About 10:00, after dark, plaintiff started to return home alone. He went out the side door of the Tonner home, down the pedestrian walk which was part of the driveway, cut diagonally across Tonner's lot toward the curb, intending to return home in the street. The path he selected took him over one of the badly defective places in the sidewalk in front of a vacant lot near Tonner's lot line. He did not follow the driveway to the street.

While plaintiff was near or on this defective place in the sidewalk, his wife called to him. He turned to talk with his wife. The fall occurred when a piece of the defective sidewalk gave way under his foot. He testified: 'At the time the accident happened I turned around a little and then stepped on a piece of concrete that looked solid and it gave out under my foot. I saw the concrete before I stepped on it like anyone would see concrete in a dimly lighted place. It was dimly light. I adjusted to the light and could observe the sidewalk and see that I was walking on the sidewalk and generally what the sidewalk looked like.'

The evidence is conflicting as to whether he fell as he turned to talk with his wife, as he turned back to proceed or after he had turned around and was continuing toward the curb. On this question the court said: 'The plaintiff testified on cross-examination that he was completely turned around again when he fell, that is turned around in the direction he was going, to the curb. His eyewitnesses do not confirm this and in fact if their evidence is to be believed, the opposite is true. The testimony of both Kenneth Mercer and Delores...