Shumway v. City of Burlington

Kobinson, O. J.

1 — The evidence tended to show the following: About 9 o’clock on the evening of March 3, 1897, the plaintiff, while exercising proper care and caution, fell on a sidewalk of the defendant, and received injuries for which he seeks to recover. Water had been for several years accumulated on adjacent premises, flowing thereon from a well or spring, and was discharged through a hole in a fence, cut for that purpose, over the walk at a place where the accident occurred. The walk was laid on a street curbed, guttered, paved and sewered with brick, and was made of boards twelve feet long and two inches thick, laid crosswise on stringers on the surface of the ground. The walk sloped towards the center of the street, the side or edge next to the fence being ten inches higher than the other. There was also evidence which tended to show that such a walk would last for from six to eight years, when it would have to be renewed. After submitting the evidence referred to, the plaintiff offered in evidence an ordinance of the defendant adopted in March, 1887, which contains the following: “No person shall lay or cause to be laid any sidewalk on any street which has been macadamized, curbed, and guttered, unless the same shall conform to the established grade of the street so improved; the outer edge of the walk so laid shall not be more than six inches above the top of the curbstone, and shall have a descent from the line of the lot *426 towards the street of three inches, — without obtaining permission from the city council.” The court sustained an objection to the ordinance, and it was not introduced. The plaintiff also submitted evidence which tended to show that at the time of the accident, and for several hours before it occurred, the temperature was so cold as to freeze water, and that early in the following morning there was a body of ice directly in front of the hole in the fence, which was about three feet wide near the hole, narrowing to the outer edge of the walk, where it was from six inches to one foot in width. The ice was thickest in the middle, and sloped to a thin edge on each side. The plaintiff did not show that any one saw ice at about the time of the accident at the place where he fell.

2 I. The plaintiff complains of the ruling of the court which excluded the ordinance. The evidence which had been admitted when that was offered tended to show that it was adopted before the walk was built. The ordinance was offered in evidence as tending to show that the walk was not constructed in a proper manner. It was the duty of the defendant to require that the public sidewalks within its limits be so constructed as not to expose people who should use them to unnecessary dangers. In the exercise of the power conferred upon it, the ordinance was adopted, and we are of the opinion that it was admissible as evidence tending to show negligence on the part of the defendant. Smith v. City of Pella, 86 Iowa, 236 . Considered alone, it might have been of but little value; but, taken with other evidence, it might have been sufficient to show that the defendant was negligent in permitting the walk to be in the condition described, at the time of the accident.

3 II. The abstract does not purport to contain all of the evidence submitted, but states what it tended to prove. That is authorized and commendable practice in cases in which this court is not required to determine the sufficiency of the evidence to sustain a verdict or judgment. Kelleher v. City of Keokuk, 60 Iowa, 473 ; Weitz v. Des *427 Moines Independent Dist., 79 Iowa, 423 ; Forcum v. Montezuma Independent Dist., 99 Iowa, 435 . Tbe appellee does not deny tbe averments of tbe abstract in regard to wbat tbe evidence tended to prove, and we bave before ns all tbat is needed to determine tbe questions, presented.

4 III. There was no direct evidence to tbe effect tbat tbe plaintiff fell in consequence of water or ice on tbe walk, bnt be fell while in tbe exercise of proper care; and tbe evidence tended to show tbat there must bave been water or ice,' and probably tbe latter, on tbe walk at tbe place of tbe accident when it occurred. Tbat tbe tendency of water or ice upon a sloping surface is to make it an uncertain and dangerous way for pedestrians is a matter of common knowledge. It is said tbat a municipal corporation is not liable for injuries caused by tbe freezing of water in a night, because negligence cannot be imputed to it unless it has bad notice a sufficient length of time to enable it to remedy tbe defect. But tbe evidence in this case tended to show tbat water from adjacent premises had been discharged through a bole in the fence, over tbe walk, for so long a time that the defendant should be charged with knowledge of ‘it. Tbe effect of a freezing temperature upon water flowing onto a sidewalk, and tbe dangers to be apprehended from ice on a sloping walk, were, it must be presumed, known to tbe defendant. Whether, under all tbe circumstances disclosed by tbe evidence, it was negligent in not anticipating tbe dangerous condition of tbe walk, and providing against it, was a question for the determination of tbe jury. Ford v. City of Des Moines, 106 Iowa, 94 ; Haskell v. City of Des Moines, 74 Iowa, 110 ; Gillrie v. City of Lochport, 122 N. Y. App. 403 (25 N. E. Rep. 357) ; Todd v. City of Troy, 61 N. Y. 506 ; Com. v. Kendrick, 147 Mass. 444 (18 N. E. Rep. 230), and cases therein cited.

We are of tbe opinion tbat, if [lie ordinance rejected bad been received in evidence, tbe jury would bave been authorized to find for tbe plaintiff. Eor the errors in rejecting tbe *428 ordinance and in directing a verdict for the defendant, tbe judgment of tbe district court is REVERSED.