Smith v. City of Des Moines

SteveNS, J. I. Appellee was injured about 11 o’clock P. M. on tbe 23d day of January, 1920, by falling upon an icy sidewalk on East Lyon Street in tbe appellant city. The injuries complained of, wbicb appellee alleges are permanent, are described as an impacted fracture of tbe left wrist. But two propositions are relied upon for reversal: One, the refusal of tbe court to instruct tbe jury that, “if tbe ice bad formed on tbe walk in question by reason of snow melting upon tbe adjacent lot and flowing thereon, the defendant bad a right to wait for a change of temperature to remedy the condition caused by such freezing condition, without being guilty of negligence, if, by reason of climatic conditions, such ice was impossible of removal;” and the other, error in tbe paragraph of the court’s charge relating to the consideration and effect to be given by tbe jury to mortality tables. The evidence as to the icy condition of the sidewalk is in sharp conflict, but, as indicated, it is not claimed by appellant that the evidence is insufficient to sustain the verdict. The sidewalk in question abutted upon a lot that was considerably higher than tbe surface of the walk toward which it sloped. The requested instruction is based upon tbe language of tbe court in Beirness v. City of Missouri Valley, 162 Iowa 720, and cases from other jurisdictions. Evidence was introduced from which the jury may well have inferred that the water from melting snow constantly, flowed from tbe lot upon the sidewalk. Tbe condition of the ice and snow upon tbe sidewalk is described as having been jagged, rough, and uneven. There was also evidence from which the jury might properly have inferred that it had been accumulating for a considerable length of time. Evidence was offered to the contrary, and to the effect that the particular sidewalk was always kept as free from snow' and ice as is possible in this climate. The weather preceding the day of the accident was generally cold, but not such as to prevent some thawing and melting of the snow and ice on the walk. ¥e find, however, no evidence in the record that the condition of the walk resulted from the melting of snow on the adjacent lot. The weather is shown not to have been warm enough for that to have occurred to any considerable extent. Furthermore, no evidence was offered to prove that it was impossible at the time to have [442] remedied the condition of the walk. Therefore, without discussing the requested instruction or expressing an opinion as to its correctness as an abstract proposition of law, we are of the opinion that the state of the record did not call for its application to this case. II. Mortality tables having been introduced in evidence by appellee, the court instructed the jury that she had an expectancy of 21.10 years, but that such expectancy is not eon-elusive, and that, if the jury found that appellee will suffer physical and mental pain in the future, resulting from the injuries complained of, it might take into consideration such expectancy as a matter to be considered in determining the amount, if any, to be allowed for such future pain and suffering as the evidence showed she is reasonably certain to suffer. The court did not, however, as a part of this paragraph, instruct the jury that life expectancy tables are designed to show the average expectancy of well men and women, and not of those who have been injured. The omission of the above clause and the failure of the court to include other matters in the instruction are complained of. The instruction is subject, to some extent, to the criticism urged against it. Canfield v. Chicago, R. I. & P. R. Co., 142 Iowa 658; Hughes v. Chicago, R. I. & P. R. Co., 150 Iowa 232; Scott v. Chicago, R. I. & P. R. Co., 160 Iowa 306. The allegations of the petition refer only to the injury to appellee’s left wrist. There is nothing in the record from which the jury could have inferred that this injury would have any tendency to reduce appellee’s expectancy. So far as the evidence shows, she was, at the time of the trial, otherwise a well person. No instruction on this point was requested by appellant. It is difficult to conceive, under the circumstances of this case, how appellant could have been prejudiced by the error in this instruction. Similar instructions have been held, in prior decisions of this court, in the absence of a request for further instructions, not to present a ground for reversal. Keyes v. City of Cedar Falls, 107 Iowa 509; Peterson v. Brackey, 143 Iowa 75; Bettis v. Chicago, R. I. & P. R. Co., 131 Iowa 46; Spencer v. Updike Grain Co., 158 Iowa 31; Cubbage v. Estate of Youngerman, 155 Iowa 39. Emphasis was given by the court in the opinions in several [443] of the aboye cases to tbe fact that the injuries complained of were not of a character likely to materially reduce the plaintiff’s expectancy. The above are all of the matters discussed by counsel for appellant. We have given no consideration to appellee’s motion to dismiss, or to the contention of her counsel that no proper exceptions to the instructions were preserved in the court below. For the reasons stated, the judgment of the court below is— Affirmed. ARthur, C. J., De Graee and Vermilion, JJ., concur.