193 Iowa 1225 | Iowa | 1922
— Huron Street in the appellant city runs east and west. On the north side of said street is a cement sidewalk. Said street is intersected at right angles by an alley. At the junction of the street and alley there is a barn, abutting 16 feet on Huron Street. The sidewalk in question on the north
I. At the close of the testimony, the appellant moved for a directed verdict, and among* the grounds enumerated was one to the effect that the evidence failed to show that the appellant was guilty of negligence. The motion was overruled.
The case is strikingly similar to Johnson v. City of Ames, 181 Iowa 65, wherein we reviewed the authorities at length, in regard to alleged defects in a sidewalk of the same general characteristics as the defects in the instant case. The sidewalk in said case vrns constructed of cement blocks, about four feet square. There was a depression in said blocks, variously estimated as being from two to three and a half inches deep at the center of the square. It also might have been found from the record that the surface of the concrete was rough and broken and worn at the center. We said:
‘ ‘ That one has suffered- injuries in traveling over the street does not, of itself alone, justify the inference that the street is negligently defective, nor that the pedestrian has been careless. Such injury may have been purely accidental, even though occasioned by some want of perfection in some portion of the highway, without fault of the traveler. Such may have been the situation in the case before us. In any event, we are persuaded that the proof was not such as to wmrrant a finding that it was due to any want of ordinary care on the part of the defendant. Had the sidewalk been made originally with such depression, the city could hardly have been thought negligent. When constructed, the walk was level, and the depression was occasioned by the action of the elements, or possibly the hand of man; and we seem not to have reached t-he time when even ordinarily prudent men are so vigilant as to anticipate every possibility of accident, though wre seem to have come dangerously near declaring municipalities insurers of the safety of pedestrians, and exacting perfection in the maintenance of the walks by cities. If the depression was rough, the respect in which it was rough ivas not disclosed, and if there were small pieces of concrete therein, they were not shown to be such as to render the way. dangerous. Undoubtedly, the depression con*1228 stituted a defect in the walk, but that alone was not enough. It must have been a defect of such' a character as, in view of its location and the use made of the walk, to attract the attention of the officers of the city, and cause them, in the exercise of that degree of caution an ordinarily prudent person would exercise under like circumstances, to anticipate danger therefrom to the pedestrian passing along the walk; and we are of opinion that the defect was not such as thus to put the city on its guard. ’ ’
The foregoing is particularly pertinent to the situation in the instant case. The appellee contends that the two eases are distinguishable. The point of distinction insisted upon is that there is evidence in the instant case tending to show that there was a “hole” or depression on the west side of the sidewalk immediately adjacent to the alley, where it is contended the surface of the sidewalk had crumbled and broken away, and that this did not appear in the Johnson case. The appellee’s contention is that, in passing over the sidewalk, he stepped the heel of his foot in this depression or so-called “hole,” and that the ball of' his foot was on the portion of the sidewalk about two inches higher, and that this caused the injury to his limb. Appellee insists that the existence of the “hole” or depression referred to obviates the rule recognized in the Johnson ease. As before stated, the evidence in regard to the existence of any such alleged “hole” or depression, as distinguished from the general depression of the four cement blocks referred to, is in dispute. In his original claim, filed with the city council, appellee did not contend that his injury resulted from the existence of such a “hole.” The engineer who examined the premises and made accurate measurements thereof denied the existence of any such “hole,” as did other witnesses. But, granting appellee’s contention in this regard, we have a situation where the appellee claims that the four blocks in the north half of the sidewalk, next to the barn, were all depressed at the north end, approximately three inches. It is his contention, also, that the two west blocks of the sidewalk immediately adjacent to the alley crossing had a “hole” or depression in them, extending the entire width of the sidewalk, which said depression was eight or ten inches wide at the north side of the walk and five
The case is distinguishable from the case of Geer v. City of Des Moines, 183 Iowa 837, 839, wherein we reviewed the Johnson case and pointed out the distinction between an alleged defect in a sidewalk caused by an elevation and one caused by a depression. There is some suggestion in the evidence that the portion of the sidewalk referred to was rendered rough by the breaking or crumbling of the cement. There is, however, no claim that this condition in any way caused or contributed to the appellee’s injury. His contention is that his injury was caused because of the depression, and the manner in which he stepped upon the sidewalk at this point, where his evidence shows the depression to be one and one-half to two inches.
Unless we are to overrule the Johnson case and our previous cases referred to and cited therein, there is no escape from the conclusion that the appellee failed to prove a case that entitled him to go to the jury on the question of the alleged negligence of the city.
It is unnecessary that we consider other questions urged by the appellant.
The case must be, and it is,- — Reversed.
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