Wright v. Atlantic & Pac. Tea. Co.
| Decision Date | 14 February 1933 |
| Docket Number | No. 41786.,41786. |
| Citation | 246 N.W. 846,216 Iowa 565 |
| Court | Iowa Supreme Court |
| Parties | WRIGHT v. ATLANTIC & PACIFIC TEA. CO. ET AL. |
OPINION TEXT STARTS HERE
Appeal from District Court, Jefferson County; George W. Dashiell, Judge.
An action to recover for personal injuries caused by falling on an icy sidewalk in the city of Fairfield, Iowa.
Affirmed.
Ralph H. Munro, of Fairfield, for appellant.
Jones & White, of Ottumwa, and Richard C. Leggett, of Fairfield, for appellee.
Starr & Jordan, of Fairfield, for Atlantic & Pacific Tea Co.
Thoma & Thoma, of Fairfield, for Louis Thoma.
The property in front of which it is alleged this accident occurred is known as 104-106 W. Burlington street in the city of Fairfield, Iowa. The property was owned by Louis Thoma and was rented to the Atlantic & Pacific Tea Company, both of whom, together with the city of Fairfield, were originally made parties defendant. A motion was made by Thoma for a separate trial which was granted. At the close of the plaintiff's testimony, the court directed a verdict in favor of the Atlantic & Pacific Tea Company and sent the case to the jury only as to the liability of the city of Fairfield.
On the 31st day of January, 1928, between the hours of 4:30 and 5:30 p. m., the plaintiff entered the Atlantic & Pacific Tea Company store to make certain purchases. As she emerged therefrom, she claims as she stepped from the building proper onto the sidewalk, she stepped on a piece of round or uneven ice on the sidewalk and fell, breaking her right leg, causing her great pain and suffering, that said leg was permanently injured because of the same, and is shorter than the other.
It appears that the step down from the floor of the building to the sidewalk is about 6 1/2 inches.
It is further claimed by the plaintiff that the ridge of ice was caused by water dripping from the cornice which is on the front of said building, the building being flush with the lot line, two stories high, and having a projecting cornice which extends into the street, according to witnesses, from 18 inches to 2 feet; that said cornice was defectively constructed or permitted to become defective, and caused the water to drip therefrom to this particular spot on the sidewalk, and it had been in this condition for a number of years prior to the time of the accident.
The evidence shows that the attention of the city had been previously called to this condition, and the council had considered the matter and after discussion, one of the members of the council was supposed to have notified the property owner to remedy the defect long before this accident occurred. There is testimony from which the jury might have found that every time it rained or when there was melting snow, the water dripped from the cornice to the sidewalk, and when it was freezing weather, the same was congealed and made this particular place on the walk icy. Said ridge of ice was described by one witness as being 2x3 feet, and it was on the cement sidewalk in front of this building and a few inches therefrom.
Paraphrasing plaintiff's claim she says: “Said defendant * * * was negligent in allowing said cornice to remain in such a condition as to permit water to drip therefrom and form ice upon said public sidewalk; that defendant was negligent in permitting said ridge of ice to remain upon the said public sidewalk.”
The case went to the jury which returned a verdict in favor of the plaintiff in the sum of $3,576.35. The court overruled a motion for a new trial and rendered judgment on the verdict in favor of the plaintiff, and the defendant, the city of Fairfield, appealed.
The first point raised by the appellant is that the city cannot be held liable unless it had notice of the very defect which caused the injury, citing 43 C. J. 1026; Beirness v. City of Missouri Valley, 162 Iowa, 720, 144 N. W. 628, 51 L. R. A. (N. S.) 218.
The second point is that knowledge of the existence of the conditions of weather and water, calculated to produce an icy condition of the sidewalk, is not equivalent to notice of the existing icy condition, citing 43 C. J. 1026; Eickelburg v. City of Waterloo, 197 Iowa, 1219, 198 N. W. 638;Carl v. City of New Haven, 93 Conn. 622, 107 A. 502, 13 A. L. R. 1.
Assuming that these authorities hold, as appellant contends, they have no application to the situation before us in the case at bar as will be shown by a later discussion of the present case.
Section 5945, Code 1931, defining the powers of a municipality over streets and alleys, reads as follows: “They shall have the care, supervision, and control of all * * * streets * * * within the city, and shall cause the same to be kept open and in repair and free from nuisances.”
It is the theory of the plaintiff in this case and of the court in its instructions that, if the plaintiff were entitled to recover, she must establish that the aforesaid cornice was defectively constructed, or allowed to become defective, and by reason thereof, the water dripped upon this particular spot on the sidewalk below, and the same constituted a nuisance, and to hold the city liable in addition thereto, the plaintiff must show that the city had knowledge thereof and was negligent in not abating the nuisance.
[1] On the ordinary grounds upon which these damage actions are founded, the plaintiff would not be entitled to recover because the best she could show by her evidence was that the ice upon which she claims to have slipped was there only forty-five minutes to an hour before the accident occurred, and under the well-settled rule in icy sidewalk cases, this length of time would not be sufficient to imply notice to the city, and the city, in fact, had no knowledge of this...
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