150 Iowa 260 | Iowa | 1911
Shortly after 1 o’clock p. m. of January 4, 1905, the plaintiff in passing along Julian Avenue, turned nearer the outside of the walk and as she did so, slipped and fell, suffering serious and permanent injuries. At the intersection of this avenue with other-streets, there was
You are instructed that .the defendant city is not required to keep its sidewalks free from snow and ice for their entire width, but is required only to keep them in a reasonably safe condition for persons traveling over the same while in the exercise of ordinary care. If there was a clear space on the sidewalk in question, in front of the piece of property where the accident is alleged to have occurred, which the plaintiff could have walked over, and she saw, or could have seen by the use of ordinary care
Though plaintiff had not been along the walk for six weeks and had no previous knowledge of its condition, she must have been fully aware thereof as she approached that portion of it in front of the candy store in broad daylight, between 2 and 3 o’clock p. m. She could and did see the alleged obstruction and the clear spaces each side for she testified,
When I got about to the east of the candy store, it was blocked there, and I was going down to get on the same walk as Mr. Kingsley was on, because it was better footing. ... I seen the. ice. The ice was there and I had to cross to go where Mr. Kingsley was going. I had to go down and there was a little ice and snow there when I tried to go down to good walk, and there is where I slipped. ... I came here on this poor walk and I was trying to get where there was better traveling, and I tried to get over there and there was some ice there, too, not very much, and a little snow over it, and there is where I slipped. . . . Mr. Kingsley was walking on the south side and I was walking on the north side until I came to the crossing; there was a ridge, of ice and snow there. I seen the snow, but I didn’t know the snow was there. ... I seen the mound' of ice, and I walked down to where it wasn’t so much.
. . . There was a little snow all over this sidewalk and that ridge, and the ridge where I crossed was a little smaller than above it, or where I tried to cross. The
If then it were necessary to walk across the ridge from the north side to get onto the tramped way beyond, the view was open to her before she took-the north side of the ridge for it extended but sixteen feet ahead.. But if it be conceded that she was excusable in taking the north side of the walk, she was not bound to pass over the ridge if dangerous.' She could have stepped into the snow ahead, beyond the store front, and on into the tramped way without touching the ridge, as the snow was but four and a half inches deep, or .she might have stepped back to the west around the ridge and passed along the other 'side. As she fell about four feet from the east end, she would have been required to retrace but four or five steps. So, too, she might have taken the south side of the ridge in the first place, and that appears to have been clear. The jury then must have found that there was a clear place which she could have walked over, that she observed the defective condition of the sidewalk, that with such knowledge she walked upon the ridge and this with knowledge of a safer way which she might have taken without material inconvenience to herself and so' finding, should have returned a verdict for the defendant had they followed the instruction quoted.
It may be that the instruction does not correctly state the law but, whether so or not, the jurors were bound to follow it and as, had they done so, they must have returned a verdict for- the defendant, a new trial should have" been granted. As to the rule in such cases, see Arnold v. City of Waterloo, 128 Iowa, 411; Crandall v. City of Dubuque, 136 Iowa, 663; Carter v. Town of Lineville, 117 Iowa, 532; Cook v. Town of Hedrick, 135 Iowa, 23;