140 Iowa 423 | Iowa | 1908
— The allegation as to defendant’s negligence and plaintiff’s resulting injury was that while plaintiff was walking south along a plank sidewalk on the east side of Sixth Avenue East, a common thoroughfare between Eirst and Second Streets East, in the defendant city, about half past three o’clock on the morning of the
This contention, we think, is unsound. It is the duty of a city to exercise reasonable care in keeping safe the sidewalks along thoroughfares which are open and used as such, regardless of whether there has been a formal acceptance of the dedication of such thoroughfares to the city as streets. The question is one of fact, to wit, was the sidewalk, constructed apparently for public travel along a street or-thoroughfare, in general use by the public — that is, open and used for travel? Harrison v. Town of Ayrshire, 123 Iowa, 528; Kircher v. Town of Larchwood, 120 Iowa, 578; Brown v. Town of Chillicothe, 122 Iowa, 640. Certainly it is not the duty of one who in the dark attempts to pass along a sidewalk apparently intended for public use to examine the city plat to see whether at that place there is a platted street which has been accepted by the city. Some regard must be had by the city to the safety of persons who are using its walks without opportunity of information as to whether the walk is constructed in a street which has been formally accepted for public use.
However unsatisfactory may be plaintiff’s account of his proceedings from the time of leaving the hall to the time of receiving the injury, we do not feel justified in saying that the trial court was authorized to wholly disregard his testimony that he was in the exercise of care at the time of the injury. There is no evidence whatever that he was intoxicated or otherwise incapable of exercising reasonable care, and there is' a like absence of evidence from which the court could determine as a matter of law that exercising reasonable care plaintiff could have seen the danger at the end of the walk so as to have avoided his fall. He testified that the morning was cloudy, and that it was still too dark for him to see the danger. He says that he kept in the middle of the walk, and felt that he was safe in doing so. It does appear that at the corner of Fourth Ayenue and Second Street he could see the pumping station about a block and a half away, but he speaks of that only as the means by which he was able to know then where he was, and he may have seen and recognized it by reason of lights. It further appears that, while the electric lights in the business portion of the city were kept burning until daylight, those in the residence portion, including the lights of Sixth Avenue, were extinguished at three o’clock. The indefinite character of the account which plaintiff gave of his actions and wander
Under the record we reach the conclusion that the court erred in taking the case from the jury and entering a, judgment for the defendant. — Reversed.