Wolford v. City of Grinnell

• Decision Date: 14 March 1917
• Docket Number: 31344
• Citation: 161 N.W. 686,179 Iowa 689
• Parties: W. A. WOLFORD, Appellant, v. CITY OF GRINNELL, Appellee
• Court: Iowa Supreme Court

161 N.W. 686

179 Iowa 689

W. A. WOLFORD, Appellant, v. CITY OF GRINNELL, Appellee

No. 31344

Supreme Court of Iowa, Des Moines

March 14, 1917

Appeal from Poweshiek District Court.--K. E. WILLCOCKSON, Judge.

ACTION to recover damages for injuries to an automobile, due to the alleged negligence of the defendant in permitting an obstruction in one of its streets. A jury was called, and at the conclusion of the plaintiff's testimony, defendant filed a motion for a directed verdict. This motion was sustained, and judgment entered against plaintiff for costs and he appeals.--Reversed and Remanded.

Reversed and Remanded.

S. B Allen and J. W. Carr, for appellant.

J. H Patton and H. L. Beyer, for appellee.

DEEMER, J. GAYNOR, C. J., LADD, EVANS and PRESTON, JJ., concur.

OPINION

DEEMER, J.

I.

The obstruction complained of was a manhole cap, with casting from 8 to 16 inches in height, set solidly in the ground and near the center of one of the streets of the defendant city, and the negligence charged is:

"That the defendant city constructed said manhole in the center of the street in a careless and negligent manner and permitted the same to continue in the center of said street obstructing the passage thereof for a long period of time, to wit: more than one year. And that the grass and weeds grew up about said obstruction so that it was obscured. That the defendant city had no lights at said location so that the said obstruction could be seen in the nighttime. * * * That the said injury was the result of the negligence of said defendant city herein, in placing said obstruction in the street in the manner aforesaid and in permitting the same to be obstructed by grass and maintaining the same in the said street; and was negligent in not having lights at the said location so that pedestrians could see the obstruction. * * * That the defendant herein did construct, or cause to be constructed, the said manhole or sewer and did keep and maintain the said street in a negligent manner as hereinbefore alleged. * * * That the negligence of the defendant city in constructing and maintaining the said manhole consisted in their constructing the said manhole so that it protruded above the surface of the road approximately 18 inches, and in not grading the street up about said manhole so constructed, and in permitting the grass and vegetation to grow up about and over the manhole so as to obscure the said manhole as it protruded above the surface of the road in the manner aforesaid and permitting it to remain in that condition, whereby pedestrians were in danger in passing to and fro upon and over said street, and in permitting the said manhole to protrude above the surface of the said street and maintaining it in that condition to the extent aforesaid, with knowledge of the dangerous condition."

The defendant denied all negligence, and pleaded contributory negligence on the part of the plaintiff. On these issues, the case was tried. Plaintiff produced testimony to show that, on September 13, 1915, at about 8 o'clock in the evening, he started from Des Moines in an automobile for his home, which was then at Deep River. He was accompanied by one Tapley, an automobile mechanic. Tapley was driving the car at the time of the accident, which happened in the city of Grinnell, about the hour of one o'clock A. M., September 14, 1915. Plaintiff and his companion had taken what was known as the "River to River Road," and reached the defendant city about one A. M., following the road into and through the city until they reached a barricade of one of the streets; and, noticing tracks leading to the south in front of this obstruction, they drove one block south and then turned east, going two blocks until they passed the intersection of that street with what is called Chatterton Street. Until they reached this intersection, they found the street level, with no obstructions; but they stopped near where a sidewalk would have been, had it been laid on the east side of Chatterton Street. At the southeast corner of this street intersection, there was a small electric light fastened to a post. They had traveled on the south side of this east and west street until they reached and partly passed over the intersection, when they noticed a ditch or gully, and from appearances concluded that this was the end of the street. They then concluded to back up the car and to proceed north again, in the hope of getting onto the River to River Road. Tapley was driving the car, and he reversed his gears and started to back up across the intersection, and in so doing ran into the obstruction, which, it is claimed, was near the center of the street intersection. As a result, the car was badly damaged, and this action is to recover compensation for the damages done.

It is claimed that the transmission and crank case struck the obstruction and did the damage to the machine. It is also claimed that this manhole was 16 or 17 inches higher than the street level; that grass had grown up around and over it; and that the traveled part of the road as it reached the obstruction turned to the south, so that the headlights of the machine would not reveal its presence; and that, after...