Welsh v. City of Des Moines
| Citation | 170 N.W. 369 |
| Decision Date | 27 January 1919 |
| Docket Number | No. 32233.,32233. |
| Parties | WELSH v. CITY OF DES MOINES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Hubert Utterback, Judge.
“Not to be officially reported.”
Action for damages caused by an alleged defective sidewalk. Judgment for plaintiff. Defendant appeals. Affirmed.H. W. Byers, Guy A. Miller, and D. Cole McMartin, all of Des Moines, for appellant.
F. T. Van Liew, of Des Moines, for appellee.
At the close of the evidence, counsel for defendant moved for a directed verdict upon the ground, among others, that no negligence upon the part of defendant was shown. The motion was overruled, and the issues submitted to the jury, resulting in a verdict in plaintiff's favor for $750.
[1][2] The sole contention of counsel for appellant in argument is that plaintiff's injuries were not the proximate result of defendant's negligence. Plaintiff, with her husband, was walking east on the sidewalk on the east side of East Walnut street, in the vicinity of the intersection of East Twenty-First street therewith, in the city of Des Moines, when she stubbed her toe, fell, and received the injuries complained of. The defect in the walk was caused by the top coat of cement becoming broken or worn away. It extended clear across the walk. The extent of the depression, according to the testimony of witnesses for plaintiff, was from 1 1/2 to 2 inches, leaving an elevation on the east side of from 1 to 1 1/2 or 2 inches. The testimony of the witnesses for plaintiff and defendant varied considerably upon this point. Plaintiff testified that the accident occurred about 9 o'clock p. m. November 29, 1916, and that she could not, on account of the darkness, see the defect in the walk, and that same was unknown to her. There was no light within 80 or 100 feet of the place where the accident occurred. The defect in the sidewalk had existed for a considerable period of time, and the evidence showed that other persons had stumbled at the same place, but had received no serious injury.
Appellant relies upon our holding in Johnson v. Ames, 162 N. W. 858, although many cases from other jurisdictions are cited. The Johnson Case is not controlling, but is distinguished from the case at bar by the difference in the kind and character of defect in the respective walks. The defect complained of in the Johnson Case was a depression of about 3 inches, into which plaintiff stepped, causing her to fall, but the edges were not abrupt, and plaintiff did not claim to have stubbed her toe, or that there was any other cause of her falling than the...
To continue reading
Request your trial
-
Beach v. City of Des Moines
...The court followed Geer v. City of Des Moines, Baxter v. City of Cedar Rapids, Bailey v. City of LeMars, all supra, Welsh v. City of Des Moines, Iowa, 170 N.W. 369, and Patterson v. City of Council Bluffs, 91 Iowa 732, 733, 59 N.W. 63, and distinguished Hirst v. City of Missouri Valley, 193......
-
Beach v. City of Des Moines
... ... inches to 2 1/4 inches. Plaintiff caught her foot or toe ... against the elevated rim of the depression and fell. Judgment ... for plaintiff was affirmed. The court followed Geer v. City ... of Des Moines, Baxter v. City of Cedar Rapids, Bailey v. City ... of LeMars, all supra, Welsh v. City of Des Moines, Iowa, 170 ... N.W. 369 and Patterson v. City of Council Bluffs, 91 Iowa ... 732, 733, 59 N.W. 63, and distinguished Hirst v. City of ... Missouri Valley, 193 Iowa 1225, 188 N.W. 783 and Johnson v ... City of Ames, supra, 181 Iowa [238 Iowa 339] 65, 162 N.W ... 858, as ... ...
-
Howard v. City of Waterloo
...167 N.W. 635; Bailey v. City of LeMars, 189 Iowa 751, in all of which the case of Johnson v. City of Ames is distinguished. In Welsh v. City of Des Moines, supra, we "We cannot hold, however, as a matter of law, that a municipality may never be charged with negligence, in case of injury, by......
-
Bailey v. City of Le Mars
...369 (not officially reported). The same distinction may be made in the instant case. The facts in the instant case are more nearly like the Welsh case. We think the instant case is ruled the Welsh case. In the instant case, it is not so much a question as to the depth of the hole, but is a ......