193 Iowa 194 | Iowa | 1922
— On December 24, 1919, the plaintiff was injured by a fall on a sidewalk in the city of Des Moines. She alleges that such fall and injury were occasioned without fault on her part, by the city’s negligence in permitting said walk to become and remain obstructed and dangerous, by an accumulation of ice and snow. The defendant denies the allegations of the petition, and alleges that, if plaintiff did fall and receive injury, it was the result of her own contributory negligence. There was a trial to a jury, which found for the plaintiff, assessing her recovery at $12,000, which, upon order of the court, was reduced to $7,500.
The testimony offered on part of plaintiff tends to show that the sidewalk in question is on the north side of East Locust Street, immediately in front of the south side of the Municipal Building, in which are the quarters of the mayor and other officers immediately connected with the administration of the city government. There was considerable evidence to the effect that, at the place of plaintiff’s fall, there was an accumulation of ice and snow, which had been trampled under the feet of pedestrians for several days, causing it to assume a rough, uneven surface, with more or less ridges or elevations and depressions, and that, on December 24, 1919, such had been the
“I stepped on a ridge, and -my foot turned over, and I slipped at the same time, and fell down. .As I fell, I put my right hand back to save myself, and hit, the- rough ice. After hitting my hand on the ice, all feeling went out, until after I was raised up. The ice was all rough and ridged, and in places two.,or three inches higher than at other places. It was frozen slush. ’ ’
Her statement is corroborated by her daughter, who was with her, and by another witness who happened to be looking on, near at hand. There had been no recent fall of snow or rain, and the jury could properly find from the evidence that the condition described had been a matter of several days’ duration. Plaintiff was a married woman, keeping th'e home for hérself and family, and in addition to her family and home duties, was engaged in the work of a seamstress for wages. The physician who was called to treat her testifies that:
“I found a double fracture, both bones between the elbow and wrist being broken. Gave her an anaesthetic, reduced the fracture, and put it in a plaster cast. On next day, examined it with an X-ray. The bones were set in the best position we could obtain. Both bones were broken and very badly splintered. The wrist was' misplaced and thrown outward, so, in reducing, it is very hard — impossible—to get the bones back where they were normally; but we got a very good position, too. The way the bones were splintered, it was very hard to get a satisfactory job out of it. * * * There is no way known to medical science ’in which the fracture could have been reduced better. ’ ’
Speaking of her present condition, the doctor says:
‘ ‘ The condition of her right hand, with reference to moving the fingers, is far from normal. Should say it is off 50 per cent or better. There has been an outgrowth of bony tissue there, and it has impaired the use of the arm. She will never have the full use of her arm.”
For the defense, defendant called to the stand several persons employed as janitors about the city hall, and interrogated
At the close of all the evidence, defendant moved for a directed verdict in its favor, on the ground that plaintiff had failed to sustain her charge of negligence on the part of the city. The motion was denied, and the issues were submitted to the jury, with the result already mentioned.
Of the many errors assigned, counsel for defendant have not attempted to argue them all severally, but have combined those which they regard of importance under different headings, which we shall attempt to follow in this discussion.
*199 “If, therefore, you find from the evidence in this case that the snow, ice, and slush on the sidewalk in question when and where the accident happened had, by reason of interference therewith by pedestrians’ walking over the same, or by the thawing of snow and ice on the adjacent lot, causing the water to flow upon the sidewalk, and thereby causing an accumulation of ice at the place of the accident, causing said walk thereby to become ridged, rough, and uneven, or otherwise dangerous to pedestrians; and if you further find that the defendant city had notice of such condition, or such condition ought to have been known to it, in the exercise of ordinary and reasonable care, and the city authorities had a reasonable time after such notice or knowledge, if any, within which to remove the said obstructions before the accident occurred, and failed to do so, then you may find the city was guilty of negligence. And if you further find that the plaintiff was not guilty of negligence contributing to her injury, then you may return a verdict for the plaintiff, under the instructions hereinafter given you.”
To so much of this instruction as refers to ice formed by the freezing of water flowing upon the walk •from outside, and permitted to become ridged, rounded, rough, and uneven, appellant excepts, as being an unsound proposition of law. "We think the. exception is not well taken. The law as stated does not, as counsel argue, put upon the city the burden of keeping the parking around its building free from snow. The statute which makes the duty of the city to keep its streets open and free from nuisance makes no exception of a nuisance caused in the manner suggested in the instruction. That it may be difficult to maintain streets in a reasonably safe condition is no reason for excusing the city from making all reasonable effort to do so.
IV. In the course of the ninth paragraph of its charge, the court said:
4 municipal street^obvfating responsibility. “You are further instructed that it was the duty of the defendant, city of Des Moines, to exercise reasonable care to keep the sidewalk in question jn a reasonably safe condition, and-that the defendant, city of Des Moines, could not relieve itself from its*200 duty by delegating that work to janitors or other employees of the city.”
The criticism upon this instruction misapprehends the effect of the statement that the city cannot escape responsibility for the care of its streets and sidewalks by delegating the work to janitors and employees. It is a strictly accurate statement of the law. It does not mean that the city may not authorize its officers or employees to attend to its walks. As a corporation, it has no other way to act or to perform its duties, except by and through individual representatives or servants. It may thus delegate the work of keeping its streets free from nuisances, but it cannot delegate its responsibility or its liability. If such work be turned over to officers or servants, as, of course, it must be, if it be done at all, their neglect in the performance of the work is the city’s neglect, and it cannot avoid liability to one who is injured through such neglect by proving that it used due care to intrust the work to competent representatives. There was no error in the instruction.
Without passing upon the question whether, under our present statute, a married woman may recover for loss of time or loss of earning capacity, in the absence of allegation or evidence of her being engaged in an independent occupation, we are disposed to say that the record presents a case for the jury, even upon appellant’s theory of the law. The plaintiff did allege and show that, in addition to her housework, she had been
We think, also, that the record contains sufficient evidence to -render proper the court’s instruction upon the question of future pain and suffering. The plaintiff testifies to her crippled condition, existing up to the time of the trial, and to continuous pain suffered by her in the broken wrist and arm; and the physician who had treated her during all the time after her injury gives it as his professional opinion that the injury is permanent, and that there will be "no change from now on.”
VI. It is next said that the testimony from the records of the weather service demonstrates that the plaintiff’s story as to the condition of the .walk is untrue. That is a matter of argument or inference, which could very properly be urged, and was doubtless dwelt upon by counsel in submitting the case to the jury, but cannot justify the court’s interference with the verdict. The testimony mentioned indicates that, while no snow had fallen during the 15 days preceding December 24th, temperatures varied from a minimum of 13 degrees to 36 degrees Fahrenheit, a sufficient range to permit thawing and freezing and the accumulation of slush and ice, a condition not at all inconsistent with plaintiff’s theory of the facts.