Parks v. City of Des Moines

Preston, O. J. Plaintiff is 65 years of age; The accident caused an impacted fracture of the neck of the femur, between the head of the .femur and the femur itself; fragments of the broken bone were crushed together. She was in the hospital about three months, with sandbags placed along her limb. She suffered greatly. It was about six months before she was able to be up, and to use crutches, and about seven months before she was able to be out. One limb is shorter than the other. No question is made but that her injuries are serious and permanent. No question is made as to the amount of the recovery. A number of witnesses were introduced on the part of plaintiff, to show the icy condition of the walk, and the length of time it had existed, weather conditions, and so on. No witnesses were introduced by defendant to contradict the plaintiff’s testimony. But two witnesses were used for the defendant, — one a photographer, who identified a photograph of the premises, taken some time thereafter, to show the general situation, the sidewalk, embankment adjacent thereto, the stores and other buildings near by, and the like. The other witness testified briefly in regard to the bank and its height and slope in front of his property, where plaintiff was hurt; that it varies from two to six feet, — it is higher towards the west. His house faces north, and the sidewalk is next to the bank on the south side of the street. Appellant concedes that there was no dispute in the evidence, and that, therefore, it was a question of law for the court. Two main questions are relied upon by appellant for a reversal: First, that the evidence does not show that there was any negligence on the part of defendant which proximately caused plaintiff’s injury, for that the condition of the walk — 974 — was from natural causes, which, the defendant was powerless to prevent and powerless to remedy. Second, that’ the length of time was so short that defendant cannot be held to have had constructive notice of the dangerous condition. The place where plaintiff fell was on Park Avenue, in Des Moines, the principal thoroughfare running east and west in that part of the city. It is much traveled. West Ninth Street is the principal street running north and south. The intersection of the two streets is a short distance — a block or so — east of where plaintiff was hurt. Park Avenue is the only street cut clear through in that part of the city. The people living east of Tenth Street have to go over Park Avenue to get to the street ear line. There is but one sidewalk on Park Avenue, between Ninth Street and the car line. The plaáe where plaintiff fell was on the sidewalk on the south side of Park Avenue. There is no walk on the opposite side of the street. At Ninth and Park there is a 'business center, including a number of stores, a branch post office, schoolhouses, and church. On Friday, December 17, 1920, at about 3 or 3:30 P. M., plaintiff started to visit some of her neighbors on Park Avenue between Ninth Street and the 1300 block on Park Avenue. She was going west. The sidewalk slopes toward the west. The wall?:, or parts of it, to the east of the lot where she fell, had been cleared off. She fell and was hurt at about 4 P. M. of that date. No snow fell on the 17th, and no snow to speak of had fallen before the 13th. On the Monday before,— that is, on December 13th, — there was a heavy fall of snow. It commenced snowing about 1 o’clock, and at 7 o’clock that evening the snow was substantially 6 inches deep. It had been tramped down, and perhaps had thawed some, so that it was about 41/2 inches deep on Tuesday, 4 inches Wednesday, 3 inches Thursday, and 2y2 inches Friday. Between Monday and Friday there was some change of temperature, the highest temperature being 46, or 14 above freezing, and the lowest.19, or 13 below freezing. For about 3 hours one day during this period, it was warm enough to thaw, so that the snow was softer; but, as said, it remained 2y2 inches thick on Friday. On Thursday, the 16th, the thermometer was highest, and the snow thawed some a part of that day, then froze again. The highest temperature on Tuesday and Wednesday was 40, and the lowest 28. Friday was the — 975 — coldest day. On each of these days, from Monday to and including’ Friday, it was freezing a part of each day. It is argued by appellant that these changes were radical. The thought is that it was so warm that the snow became slushy. There is some evidence tending to show that the thawing was enough so that footprints would show; but it must be remembered that the snow was hard packed from tramping of pedestrians, and that the thawing'during the day was for a short time. Time and other elements are necessary to be considered on the question as to the extent of the thawing. Rose v. City of Fort Dodge, 180 Iowa 331. The defendant brought out, on cross-examination of plaintiff’s witnesses, that sometimes water from thawing snow would run down the bank and over the -walk. It is not clear from the evidence whether such was the fact at the time and place in question, or that this was the cause of the icy and dangerous condition of the walk where plaintiff fell. It may have had a tendency in that direction, and may, to some extent, have been the cause. It is contended by appellant that not more than one or two days had elapsed from the time the walk became dangerous, if it was so, before plaintiff fell. But the evidence shows that, from a time soon after the snow fell, for substantially four days, because of the travel and tramping over the snow, and the thawing and freezing, it had become packed and icy, and was rough, rounded, uneven, and in a condition substantially different from the way the snow fell naturally. A jury could have found from the evidence that during this entire time such was the condition, though it may have changed somewhat from day to day. They could have found that such was the condition at the time plaintiff fell. The evidence is by no means conclusive that the condition of the walk which resulted in plaintiff’s fall was caused by a thaw within a day or two prior thereto which materially changed the rough and dangerous condition; which, as said, had existed for at least four days. At least, the question was for the jury. The cases cited by appellant are largely decisions by courts in other states. 1. Without entering into a detailed discussion of the evidence or a rediscussion of the principles of law applicable to such a situation, we think the evidence brings the case well — 976 — within the rule as laid down in our cases, and that the condition of the walk was such as to constitute actionable negligence which was the proximate cause of plaintiff’s injury. Griffin v. City of Marion, 163 Iowa 435; Templin v. Incorporated City of Boone, 127 Iowa 91; Gregg v. Town of Springville, 188 Iowa 239; Rose v. City of Fort Dodge, supra; De Wall v. City of Sioux City, 181 Iowa 333; Allen v. City of Fort Dodge, 183 Iowa 818; Finnane v. City of Perry, 164 Iowa 171; 13 A. L. R. 17, 29, and note. Other cases might be cited, but the rule is well settled in this state, and is as announced in the foregoing eases. It was pointed out in some of the earlier cases that there was a conflict in the authorities from other jurisdictions in re,gard to liability for accumulations of snow and ice. The rule was adopted and followed, as shown in the cases above cited. In the last case on the subject, the Gregg case, supra, we said: "It is well settled by our decisions that: 'No such duty [with respect to such accumulations] exists while the snow and ice remain unchanged by the interference of man or other artificial cause. That duty arises only when, by reason of such interferences with natural conditions, the snow or ice becomes rigid [ridged] or rounded or uneven, or is made to assume, some other form or present some other danger than would result solely from natural causes’ ” (citing cases). Another case, Tobin v. City of Waterloo, 131 Iowa 75, restates the rule in more specific terms thus: "Ice and snow accumulated on the walls: from natural causes, though slippery because of their smooth surface, is not a defect for which the city may be held responsible. It is only when such ice and snow are allowed to remain upon the walk until, by the tramping of pedestrians,. freezing and thawing, or other causes, the surface becomes rough, rigid [ridged], rounded, or slanting, so that a person in the exercise of ordinary care cannot pass over it without danger of falling, that the defect is such as to render the city liable.” The other cases are to the same effect. The condition described was proved by the testimony in this case, and the jury could have so found. Witnesses testify specifically that this condition had existed for substantially four days. The evidence fully meets the requirements of the law, as laid down in all — 977 — oui‘ cases.' In this case we are bnt following' onr own precedents. It is not onr purpose to extend or broaden the rule. 2. As indicated, there is but little evidence in regard to the melting of snow on the bank and its running over the walk, and that was drawn out by defendant. If this had anything to do with the icy condition, it does not necessarily defeat a recovery. It would be but a contributing cause. There is no evidence that shows affirmatively that the accident. could not have happened if the walk had not been rough and uneven, if the ice Avas formed by water running down the embankment. This Avas a question for the jury. 3. Appellant seems to argue and rely most on the question as to whether the evidence was such as to justify the submission to the jury of the question as to whether the city had constructive notice, and the jury’s finding that it had. The city must have had either actual or constructive notice of the detect, and opportunity to repair the same. On the question as to the length of time, Cooper v. City of Oelwein, 145 Iowa 181, White on Negligence of Municipal Corporations, Section 267, Beirness v. City of Missouri Valley, 162 Iowa 720, and other cases, are cited. In the Beirness case, it was shown by the evidence that, from one to three days previous to the injury, there had been a slight thaw, followed by freezing, causing the icy surface of the walk where plaintiff fell; and it was held that this Avas not a, sufficient lapse of time to charge the city with notice. But ‘the evidence in that ease showed that the ice upon which she slipped covered .a surfacé about the size• of a hand, described as'just a little spot of ice, and that there was the appearance óf a sleety condition. Under such circumstances, it Avas held that notice of the particular icy condition which causéd her injury should not be imputed to the city.' The facts of that casé' áre-not at all applicable here. All the circumstances must be- considered. Much'depends.upon the' character of the' defect; and upon the circumstances and surroundings. Town of Monticello v. Kennard, 7 Ind. App. 135 (34 N. E. 454); Reed v. City of Mexico, 101 Mo. App. 155 (76 S. W. 53); Miller v. Town of Canton, 112 Mo. App. 322 (87 S. W. 96). Each case must depend upon the facts and circumstances attending it. Generally it is a question — 978 — for the jury. There is no fixed or definite rule as to what length of time a defect or obstruction must have existed, to furnish notice. 20. L. R. A. (N. S.) 708; Cutter v. City of Des Moines, 137 Iowa 643; Smith v. City of Sioux City, 119 Iowa 50; Garnetz v. City of Carroll, 136 Iowa 569; Hodges v. City of Waterloo, 109 Iowa 444. So far as length of time is concerned, what would be notice in one ease might not be in another. That is to say, an obvious defect would impart notice, of course, more readily than one less perceptible and partially hidden, and readily overlooked by the authorities and the traveler. Town of Montieello v. Kennard, supra; Reed v. City of Mexico, supra. Perhaps other circumstances might be referred to, as to the obviousness of the condition of the walk, as bearing upon the question of notice. In this case, the defect was not something that happened suddenly, as the dropping of a barrel stave from a loaded wagon, or something thrown or left in the street for a short time. Many cases might be cited wherein it has been held that the length of time was or was not sufficient to impart notice. Ten or fifteen minutes would not be enough (Sikes v. Town of Manchester, 59 Iowa 65) ; nor three hours, where rock had been dumped in the street (Hazelrigg v. City of Frankfort, [Ky.] 92 S. W. 584); nor five hours (Klatt v. City of Milwaukee, 53 Wis. 196). On the other hand, a city will be held to have constructive notice of a defect in- a sidewalk where, as here, the defect was a matter of public notoriety in the neighborhood. City of Evansville v. Wilter, 86 Ind. 414; Snyder v. City of Albion, 113 Mich. 275; Varnham v. City of Council Bluffs, 52 Iowa 698. From morning until noon was held sufficient, under the circumstances of the case, in Harriman v. City of Boston, 114 Mass. 241. Four days sufficient — excavation in street. City of Fort Wayne v. Duryee, 9 Ind. App. 620. See 20 L. E. A. (N. S.) 708, note; 13 A. L. E. 45, note. In Buffalo v. City of Bes Moines, 193 Iowa 194, it appears that the condition had existed for six or seven days, and we said that a very much shorter time might well be held sufficient, under the admitted or proved circumstances. In the following cases, time varying' from four or five days up was sufficient to make the question of notice a question for the jury. De Wall v. City of Sioux City, supra; Hodges v. City of Waterloo, supra; Thomas v. Town of Brook — 979 — lyn, 58 Iowa 438; Huston v. City of Council Bluffs, 101 Iowa 33. We are of opinion that, under the entire record in this ease, the court could not say, as a matter of law, that the evidence tending to show constructive notice was not sufficient; but, on the contrary, it was a question for the jury as to whether, under all the circumstances and length of time, the city had constructive notice, and time to remedy the defect. 4. The question of the alleged contributory negligence of the plaintiff in going on the walk was for the jury. De Wall v. City of Sioux City, 181 Iowa 333, 336; Travers v. City of Emmetslurg, 190 Iowa 717; Gregg v. Town of Springville, supra. 5. In the instruction .on the measure of damages, after stating the different elements for which recovery might be had, if the jury should So find, the court said: “In this connection, the law has not establisbed any fixed rule for determining these amounts, but that is left to your judgment; and in fixing these amounts, you will do so fairly, honestly, and discretely, and allow such sum and only such sum as you may conclude she is entitled to recover, after considering fully and fairly all the facts and circumstances in the case. ’ ’ It is thought by appellant that the jury were misled by the use of the word “discretely.” Doubtless the court meant “discreetly,” — with discernment, prudently, judiciously. In the connection in which the word was used, we have no doubt that the jury so considered it. The court or stenographer may' have inadvertently misspelled the word intended. Counsel state that they did not themselves know the meaning of “discretely” until after the court had read the instructions, when they looked in the dictionary and found that it meant ‘1 separately ’ ’ and' ‘ ‘ disjunctively.” It is not at all probable that the jury gave the word any such meaning. The argument is that the word as used is entirely foreign to the subject-matter under consideration in the instruction, and that it was misleading and prejudicial. Yerbal inaccuracy in instructions, where the jury could1 not have been misled, is not ground for reversal.- Brown v. West Riverside Coal Co., 143 Iowa 662. We are very clear that there is no prejudicial error at this point. — 980 — — 979 — 6. Finally, it is contended by appellant that, under the — 980 — issues and under the law, the trial court erred in permitting the witness Canfield to testify concerning the bad condition of the walk at other times than those specifically alWed. The record is: Witness testified that he heard of the accident to plaintiff on the following day after it happened, and says: “As I recall the condition of the walk at that time, it was in a rough condition. * * * Q. What would you say in reference to the fact as to whether or not snow and ice was generally permitted to accumulate on that walk? A. It was. Q. At other times ? A. It was. “Mr. Weaver: • I object to the answer, and ask to have it stricken, as incompetent under the issues, there being no allegation of anything else except what existed between the 13th and 17th of December.” The court at first sustained the motion, and later changed his ruling. It will be observed that there was no objection to the questions until the ansivers were in. It was just as apparent when the questions were asked, as when they were answered, that the evidence was incompetent, if it was so. The objection was, therefore, not timely, and the court could have overruled it on that ground. If we notice this evidence closely, it will be seen that the witness at first had referred to the day of the accident, or perhaps the -day after, when he saw the walk. The expression “other times” is somewhat indefinite. It may have been 'two or three days prior to the 17th. It may be that it referred to a time prior to the 13th; but it does not so appear. Furthermore, after the court had sustained defendant’s objection to the Canfield evidence, and before the court had changed his ruling, similar evidence went in without objection. Witness Doctor Wadding testified: “In my visiting I have been over this walk a good deal. Most all winter when there was ice, usually ice was on the walk there. ’ ’ The matter was gone into in further detail by defendant on cross-examination, and without objection. He testifies: “I have been walking that street for three years. I remember it is rather a bad street in the wintertime. The reason I — 981 — remember is because I usually would walk off of tbe sidewalk. There is a high bank on the south side of the walk, and in the wintertime there is so much ice and snow there usually that, when I would go along going west, I would step off the sidewalk. Q. "Were you along there when it was thawing? A. I think so. Q. What becomes of the melted snow on the bank? A. It runs down across the walk onto the street. ’ ’ It would seem that this evidence is even broader than that of Canfield, now complained of, for that the inference from this testimony is that it was the usual condition, and that witness had been over it for three years. The latter part of the evidence just referred to, as to the melting of snow and its running across the walk, was brought out by defendant, doubtless on the theory that the city would not be liable for water from melted snow flowing across the walk. But we have seen that the fact that there were two causes does not necessarily excuse the city. Counsel upon either side refer to Hanousek v. City of Marshalltown, 130 Iowa 550, and Wilberding v. City of Dubuque, 111 Iowa 484. In the Wilberding case, the issue involved the question of the defective condition of a plank walk for some distance along where an accident had taken place. In the Sanousek case, water had been poured out through a pipe, and across a street, which condition had existed for a considerable time. It is thought by appellant that these eases do not apply here. This may be so, especially on the question of notice; but we think that, in view of the record we have set out, appellant is in no position to complain, and that there is no prejudice. As said, appellant contends that such an issue was not contained in the pleadings. It is not so clear that this is the fact. The icy condition may have been caused in part by the water from melted snow which flowed over the walk. Though, as said, there is but little evidence of this, that seems to have been appellant’s theory, and it brought out evidence bearing on that question. The petition, which was not in any manner attacked, recites: “That, about December 17th, and for days prior thereto, the sidewalk * * * was allowed to become dangerous and unsafe to persons lawfully traveling over the same, because defendant — 982 — did negligently permit snow and ice to accumulate on said sidewalk, and allow the same to become and remain there until the same became caked and packed by travel, and carried by pedestrians, so that the surface of said frozen snow and ice was rough, rounded, ridged, slippery, uneven, and dangerous, by -reason of said ridges, elevations, humped knolls, and hillocks of ice and snow * * * and plaintiff was violently precipitated upon the same. * * * That, for a long time prior to the injury, defendant negligently permitted said sidewalk to remain covered with ice and snow, as before alleged,” etc. It is unnecessary to discuss the pleadings further, since no complaint is made by appellant thereof, other than the reference thereto in the objection to evidence; nor is it necessary to discuss Instruction No. 5 on that subject, since the instruction is not complained of. We think there was no error at this point. No prejudicial error appearing in the record, the judgment of the district court is — Affirmed. Weaver, Evans, and Arthur, JJ., concur. Stevens and Faville, JJ., concur in the result. De Grakk, J., dissents.