158 Iowa 279 | Iowa | 1912
The defendant owns a two-story brick building at the northwest corner of Cottage Grove avenue and Nineteenth street, in Des Moines., Entrance to the upper story is by, a stairway from Cottage Grove avenue on the south, from the top of which a hallway extends to the north, with four rooms on each side. At the north end of this hallway was a door opening onto a covered landing, from which an outside stairway extended along the end of the building toward the east to the ground. On the outside of this stairway was a railing, about two and one-half feet high, with boards extending parallel therewith part of the way, fastened to the posts and spindles the rest of the way. A roof of boards and tar paper, with a board next to it, covered the stairs, except the last two steps; the space between the board and railing being open. The plaintiff oe
At the conclusion of the introduction of evidence in behalf of plaintiff, a motion to direct the jury to return a verdict for defendant was sustained. The grounds of this motion were (1) that no actionable negligence of defendant had been shown; (2) that the premises, in the respects complained of, were in the same condition as when plaintiff became a tenant; (3) that plaintiff “was injured by reason of
It will be observed that assumption of risk was not pleaded as a defense, and that contributory negligence was not made a ground of the motion to direct a verdict. Neither of these was referred to in the court’s ruling, and, though argued by appellant, requires no attention.
Nothing is claimed because of the alleged negligent construction, and, of course, could not be, as conditions were in no wise concealed from nor misrepresented to the tenant in leasing the rooms. Boyer v. Commercial Bldg. Inv. Co., 110 Iowa, 491; 24 Cyc. 1047. But, as the stairway was made use of by the several tenants, this remained in the control of the defendant, and she was bound to keep the same in reasonable repair; if she negligently failed so to do, and as a consequence of such failure plaintiff was injured, liability therefor attached. Burner v. Higman & Skinner Co., 127 Iowa, 580; Peil v. Reinhart, 127 N. Y. 381, (27 N. E. 1077, 12 L. R. A. 843). Watkins v. Goodall, 138 Mass. 533; 24 Cyc. 1116; 18 Am. & Eng. Ency. Law, 220.
She testified that:
At the east end of the roof there was a gutter, but it was not connected; and there was a pipe run from that to the downspout, . . . and coming down from that was a round tin pipe, which went over to the downspout at the corner of the building; that afterwards the downspout bursted, and defendant had it run under the sidewalk into an earthen pipe; that the pipe at the east end of the stairway had leaked for some time; and that the husband of defendant, who saw to making repairs, promised repeatedly to have same mended, and when he did the leak was not stopped, and the water came out on the steps just the same. . . . There was a little spouting at the east end of the porch (over the stairway); but it didn’t connect in some way, and let the water come down on the steps. When I first went there, there was a tiling in this downspout. That froze and broke. Mr. Houghton repaired that, or repaired at it, and took a piece of tin and fixed it, and had a wire around it— you could move it up and down — and the water used to spout out that way and over onto the steps, out between the tiling; it didn’t fit in. It was in that condition when I was hurt. It didn’t do that when I first went there. The water run down between the porch and the bidlding and onto the step. I don’t think it was in that condition when I went there. The spout at the east end of the top to the stairway was in a leaky condition; right up in there where it should have been fastened, it wasn’t fastened at all. That was not there to my knowledge when I went there. The water came down from the roof on the porch. It went in there and didn’t fit, and down at that place down by the steps — I mean the down*284 spout. He fixed that place, after being asked to, the spring before I was hurt, but left it in the same condition. It leaked just the same, and was never corrected.
On December 5, 1909, at 6 o’clock in the afternoon, she;
Was going down the back stairway to empty my ashes. I had them in the ash pan that belonged to the stove. I put on a new pair of rubbers, my red shawl, my sunbonnet, my mittens, and took up my ashes and walked out; started down the back stairway. I had my ashes in my right hand, and left hand on the railing.' I went down step by step, and when I got to the bottom of the steps something caught my foot. My foot slipped, caught my heel, and I held onto the railing then as long as I could, and I fell and broke my leg, and I slipped down and went over into the sidewalk that belongs to the private alley. I could not see what I fell on. I could feel that ball of ice, or whatever it was caught mi/ heel. I had rubber heels on my shoes. It caught my heel of my foot and pulled it right backwards and sprained my ankle. This ice was down on the bottom, or next to the bottom step — down where that water accumulated. I fell right on the place where my foot caught. My foot pulled right back, and I held on as long as I could; and when I let go, then it let go of my foot, and I fell. I fell where this ball of ice was. It pulled my foot right back.
She had observed that the ice accumulated there every time it rained and froze, but not when she first occupied the room. Before going down that evening, she knew the steps had ice on them, but not the accumulation she found. She proceeded:
I think it had rained that day, sleeted and snowed. It was a stormy day. Saturday it was kind of drizzling, misting more like. It must have continued Sunday, because I know it sleeted. There was always ice there when it rained, or any kind of sleet. . . . This water that accumulated in ice that formed the xddge or chunk I fell on came from that porch right there where that little space was, and didn’t fit in, and down where that little pipe that went into the drain that had a little wire on it. When we had a real hard rain, it would come down there and fly up like that — we used*285 to call it a little fountain — and go on the steps right down there on the pavement.
She testified further, on cross-examination, that;
This gutter came to the east end of the stairway roof, that is the gutter from the roof. That is the spouting. I don’t know whether it was an open gutter or not. There was a gutter there. So far as I know, I never saw it changed. It was an ordinary gutter, raised at the north end and running off south towards the building, and coming down from that was a round tin pipe. It went down to the corner of the building. It sort of went off southeast and struck a big pipe. He put it in the spring after I came there. I came there in 1907. Q. Did it get colder Saturday night? A. I don’t remember whether it did; I know it did Sunday. I slept so sound Saturday night that I don’t remember. Q. You slept so sound you do not know whether it got colder or not, but you know it was colder Sunday? A. Yes. Q. And you know it was colder during the day? A. I didn’t pay no attention to whether it was colder. Q. Which way was the wind from that day? A. I don’t remember. Q. You couldn’t remember at all? A. No; but I don’t think it was from the north. Q. Do you think it was from the east? A. If I was just thinking, I should say it was from the south. . . . I cleaned off' the steps myself Saturday. Took my broom handle and cleaned them.
Another witness testified that “when the water came down the downspout it always left a lot of ice on the lower steps there. I cannot say for sure where it came from, because I did not pay a great deal of attention to it; but some of the water seemed to come from that spout, and -the rest seemed to come from between the wall and the building; it leaked down. There was an open place between the wall and the building, where the water came on the stairs and ran down until it got to the street. The ice accumulated most about the two or three lower steps.”
This recital of the evidence leaves no doubt but that it was sufficient to carry the issue to the jury as to whether