164 Iowa 171 | Iowa | 1914
The accident occurred upon one of the public and much frequented, residential streets in the defendant city on the 13th day of February, 1912, and an original notice of the suit was served on May 13, 1912. The original petition was filed on May 14, 1912, and the grounds of negligence pleaded therein were as follows:
That the defendant had permitted its sidewalk at the point in controversy to become in a defective condition in that the same was broken, uneven, and covered with ice and snow. These allegations in plaintiff’s notice must be held to he the charge of negligence against the defendant on which and for which the plaintiff must recover against the defendant, if at all. (The court further instructed.) That as to the other allegations in the plaintiff’s petition that the defendant has permitted the sidewalk in question to be improperly constructed with surface thereof broken so that the same was made slippery by melting snow and ice, or from want of
Some complaint is made by defendant of these instructions, but the complaint is without merit. The instructions are clear, and the jury could not have been misled thereby. The prejudice, if any, was to the plaintiff, but she is not complaining; and, as the original notice is not in the record, we must assume that the court below properly interpreted it. The plaintiff mignt well complain of this instruction; but it was evidently nonprejudicial to the defendant.
II. The accident occurred on the south side of Warford street, between Third and Fourth, and about fifteen feet west of Fourth street, and the plaintiff described the condition of the place as follows:
I was along there between the 1st and the 18th of February. I traveled over the walk twice during that time. I do not know the exact time, except it was between the 1st and the 18th of February. There was about two weeks between my trips over this walk, and my last trip was not later than the 18th of February. The first time I went over the walk I noticed the condition of the walk, and it had snow and ice on it. At that time I was going east from Third to Fourth street, and the walk was rough in places. It was rough toward the east end. It was also slick. The last time I went over the walk there had been some snow, but it was rough, and the place was slick so it was difficult for me to get over. On the last time that condition of being rounded up, smooth, and slippery continued as I had seen it before. I do not know how long that snow and ice had been on the walk. There was ice on the walk and snow over it. This condition extended over quite a little strip of the walk just west of Fourth street and on the south side of Warford. There was more snow on the walk -the last time I crossed it than the first time; It appeared to be thawing. It was not thawing the first time. The water that thawed out of the snow appeared to stay mostly on the walk. There was snow on the walk that day. I could not say how much but enough to cover the ice. The snow was level and had footprints in it. I could see the ice through the prints. The ice was slick in some places, but I do not remember what part of the walk that was on. There was no fresh snow that day. It might have snowed a little bit the night before, but there was no snow on this day. In some places the ice was smooth and in others it was not. The smooth places were where it was kind of raised up where the water ran over it.
Another testified:
Last winter during January and February I frequently passed over the walk on the north side of the' Pattee place on
And still another gave this evidence:
I live on south side of Warford street. I go up that side of the street more than I do the other, four or five times a day during last January and February. I walked up whichever side I got started up and stayed on it. I think the snow commenced falling in December. I think there was snow on the ground Christmas. Part of that snow stayed on until spring. The ground was covered continuously. There was ice on the sidewalk in question last winter, but I don’t know what time. Part of the snow stayed on all winter. The condition of the sidewalk, lawn, and terrace is the same as the picture shows. The drainage is north onto the sidewalk. Q. On this sidewalk, this Pattee’s sidewalk, there was snow on the
Defendant offers to prove that the conditions existing in the city of Perry last winter — that all sidewalks, even if well drained, that ice accumulated thereon from the water that would melt from the banks of snow along the sidewalk, and that it was impossible with ordinary diligence and the usual methods to keep any sidewalk free from ice. The court rules that such evidence is incompetent. Exception taken to ruling.
The record shows, however, that the city was permitted to prove its efforts to beep the sidewalk in question in repair, and its care with reference thereto. The mayor testified to having inspected the walks of the city during the winter of 1911-12, and that he went over the walk where the accident occurred some time in February, although he could not give the exact date. He further said that he was over the walk, where plaintiff fell, on tours of inspection every two weeks, and was certain that he was over it twice in January and as many times in February. Defendant contends that the court was in error in denying the proffered testimony, claiming that it would show ordinary care on the part of the city, and that
III. The trial court gave the following, among other, instructions:
(9) Cities and towns are not insurers of the safety of travelers upon their streets and sidewalks. It is their duty, however, and it was the duty of the defendant, to have kept its walk in a reasonably safe condition for persons desiring to pass over them, to pass in safety, by the use of due care and prudence on the part of said pedestrians in passing over said walk, and if the plaintiff has shown by a preponderance of evidence, as herein defined to you, that while she was exercising ordinary care and prudence, and without any negligence on her part contributing to the injuries complained of, by reason of the negligence of the defendant,- as charged in her petition, and as submitted to you herein by the court, she was injured by reason of the defendant permitting snow and ice to be and remain on the walk referred to in the plaintiff’s petition in such a rough, rounded, and uneven condition as to render such walk dangerous to persons passing over the same in the exercise of ordinary care and prudence, then in such a case the defendant would be liable to the plaintiff for whatever injury the evidence has shown she has sustained by reason thereof, providing that you further find that at the time and prior to the time of the said injury the defendant had knowledge of such defect complained of or by the exercise of ordinary care and prudence it should have known of such defect in time to have remedied the same and thereby prevented the injury.
The first of these, No. 9, is complained of, because in the first paragraph the jury was instructed that it was defendant’s duty to keep the walk in a reasonably safe condition. If this phrase stood alone, doubtless the instruction would be erroneous; but, taken as a whole, it presents the true rule, and it was not prejudicial in character. Lindsay v. City, 74 Iowa, 111.
Instruction No. 10 does not, as defendant contends, shift the burden upon it of showing that the snow and ice were unbroken, smooth, and even. The instruction has no reference to the burden of the proof. That matter was covered by other instructions which are not quoted.
Instructions stating the issues are complained of, but
No prejudicial error appears, and the judgment must be, and it is, Affirmed.