Travers v. City of Emmetsburg

• Decision Date: 11 January 1921
• Docket Number: No. 31891.,31891.
• Citation: 190 Iowa 717,180 N.W. 753
• Parties: TRAVERS v. CITY OF EMMETSBURG.
• Court: Iowa Supreme Court

190 Iowa 717

180 N.W. 753

TRAVERS

v.CITY OF EMMETSBURG.

No. 31891.

Supreme Court of Iowa.

Jan. 11, 1921.

Appeal from District Court, Palo Alto County; N. J. Lee, Judge.

Action at law to recover damages for personal injury. The petition alleges that the defendant city negligently permitted one of its sidewalks to become obstructed by accumulations of snow and ice, and that plaintiff, while using said walk and in the exercise of due care for her own safety, slipped and fell thereon, receiving severe and painful injuries. The defendant denies the averments of the petition, and alleges that the plaintiff's injury, if any, was the result of her own failure to exercise due care for her safety. Verdict and judgment for plaintiff, and the defendant appeals. Affirmed.John Menzies, of Emmetsburg, for appellant.

Wm. J. Fisher, of Emmetsburg, for appellee.

WEAVER, J.

I. The sufficiency of the petition was not challenged by motion or demurrer in the trial court, and we shall take no time in discussing objections thereto raised for the first time in this court. It is enough to say that the pleading fairly states a cause of action under the rule recognized in Templin v. Boone, 127 Iowa, 91, 102 N. W. 789,Crandall v. Dubuque, 136 Iowa, 663, 112 N. W. 555, and many other precedents of like effect.

[1] II. Of other assignments of error the one most seriously urged upon our attention is directed against the sufficiency of the evidence to support a verdict in plaintiff's favor. Concerning the condition of the sidewalk and circumstances of the alleged accident the testimony is in sharp conflict. On the part of the city there is evidence by several witnesses that the walk at the time and place in question was regularly and frequently cleaned of snow and ice, and that, if plaintiff fell there on the date named by her, it must have been from some cause other than the one alleged in her petition. On the other hand, however, there is an equal, if not greater, number of other witnesses testifying that the walk then was and for days had been obstructed to a material degree by show and ice, which by process of alternate freezing and thawing and by being tramped over had acquired a hard, uneven, and slippery surface, making its use by pedestrians unsafe. This state of the record makes the fact as to the actual condition of the walk a jury question, and the verdict thereon cannot be set aside as being without support. It may also be said at this point that the evidence is sufficient to support a finding by the jury that the alleged unsafe condition of the walk had existed for such length of time that the city, by its proper officers, ought to have discovered and remedied it.

[2] III. It is urged on part of appellant that, regardless of the alleged negligence of the city, plaintiff cannot recover damages because of her own contributory negligence. This contention is grounded, in part, at least, on her statement as a witness on the stand that before the day of her injury she had passed over this walk and it was then icy and slippery. From this admission it is argued that, in attempting to use an unsafe walk with knowledge of its condition, she made herself properly chargeable with contributory negligence. It appears, however, from plaintiff's story, that the time of her last previous observation of the condition of the walk was about 10 days before her injury, and certainly it cannot be said that, because of her knowledge of the existence of ice on the walk 10 days before, she was bound as a matter of law to know or assume its continued existence. De Wall v. City of Sioux City, 181 Iowa, 333, 164 N. W. 640.

[3] Moreover, even if she had known of the condition of the walk, it would not...