Wilson v. City of Clinton

• Decision Date: 13 December 1927
• Docket Number: 38518
• Parties: GRACE WILSON, Appellee, v. CITY OF CLINTON, Appellant
• Court: Iowa Supreme Court

216 N.W. 698

204 Iowa 1183

GRACE WILSON, Appellee, v. CITY OF CLINTON, Appellant

No. 38518

Supreme Court of Iowa, Des Moines

December 13, 1927

Appeal from Clinton District Court.--A. P. BARKER, Judge.

Action in tort, to recover damages for personal injuries sustained by plaintiff by slipping on ice on a public sidewalk in the city of Clinton, Iowa. The trial court overruled defendant's motion for a directed verdict at the close of plaintiff's testimony, and also on the conclusion of all the testimony. The jury returned a verdict in favor of plaintiff for $ 200, and from the judgment entered thereon the defendant city appeals.

Reversed.

J. D Carstensen and E. L. Miller, for appellant.

E. P Delaney and L. F. Sutton, for appellee.

DE GRAFF, J. EVANS, C. J., and ALBERT, MORLING, and WAGNER, JJ concur.

OPINION

DE GRAFF, J.

This is an "icy" sidewalk case. The challenge of the city has to do with the sufficiency of the evidence to sustain the verdict, and the propositions of the appellant upon which reversible error is predicated are as follows: First, that the ice on the sidewalk upon which appellee slipped was not of the character to constitute negligence in permitting it to be there. Second, the condition complained of had not existed for a sufficient length of time to give the city constructive notice thereof. Third, that the city may, for a reasonable time, wait for a change in temperature to remedy the condition complained of, without being guilty of negligence. Each of the foregoing points is sustainable under the record facts presently and briefly stated.

A municipality is not an insurer of the condition of its sidewalks in relation to snow and ice. Sufficient time must elapse between the formation of the defect, as alleged, and the date of the accident, to place the municipality on inquiry, and to allow a reasonable opportunity to remedy the defect. Unless this is shown by the plaintiff, the city may invoke the theory of non-liability.

In the instant case, it is undisputed that the city did not have actual notice of the condition through any of its representatives or officials, and there is no claim that anyone, city or citizen, had knowledge or notice of the condition alleged to have been the proximate cause of the injury as claimed by plaintiff. The plaintiff herself testified:

"I came along and slipped on some ice. I did not notice any difference between the spot where I slipped and any other spot that I had walked on, until my foot slipped on this glare of ice. It looked just like all the rest of the sidewalk. It had a covering of about one fourth or one sixteenth of an inch of ice."

The record presents one of those sudden transformations in weather or climatic conditions in this state of which an Iowa court might well take judicial notice. We all know that cities are officered and managed by human agencies, which are subject to finite limitations. No principle of law or justice holds a municipality liable for a failure to do the impossible, and in a case of this character, climatic conditions must be considered. As pointed out, there is no evidence tending to prove that anyone had observed that the walk in question was in a dangerous condition prior to the time plaintiff fell thereon. It is said in Broburg v. City of Des Moines, 63 Iowa 523, 525, 19 N.W. 340:

"Under such circumstances, it cannot be assumed that the city or its officials had knowledge of what did not exist, or, which is the same thing, which the evidence fails to show existed."

We have, in the instant case, a film of ice suddenly formed by reason of a slight change in temperature. It would have been practically a physical impossibility for the city to remove the ice in the time intervening between its formation and the injury to plaintiff.

It is undisputed that there was no ice on the sidewalk in question on the morning of the accident, or the day before. It is only when the ice or snow is suffered to remain upon the sidewalk until, by tramping of pedestrians, freezing or thawing, or other cause, the surface thereof has become rough, ridged round, uneven, or irregular, 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 municipality...