Home/Supreme Court of Iowa/Nicholson v. City of Des Moines

Nicholson v. City of Des Moines

60 N.W.2d 240, 245 Iowa 270, 44 A.L.R. 2d 616, 1953 Iowa Sup. LEXIS 378
CourtSupreme Court of Iowa
DecidedSeptember 22, 1953
Docket48317
StatusPublished
Cited by14 cases

This text of 60 N.W.2d 240 (Nicholson v. City of Des Moines) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nicholson v. City of Des Moines, 60 N.W.2d 240, 245 Iowa 270, 44 A.L.R. 2d 616, 1953 Iowa Sup. LEXIS 378 (iowa 1953).

Opinions

Oliver, J.

— Plaintiff’s decedent, Winfred Vincent, aged seventy-two years, was a carpenter by occupation. The petition alleged he died from injuries caused by his falling into a pit at the northwest corner of the bridge spanning Four Mile Creek on Easton Boulevard between East Thirty-sixth Street and East [272]*272Thirty-seventh Street, Des Moines; that immediately prior to falling into the pit, decedent was walking east on a cinder covered path maintained by the City along the north side of Easton Boulevard, which path led directly to a walk for pedestrians at the north side of the bridge; that his death was caused by the negligence of the City in failing to maintain a barrier or railing and a street light at the place and give warning of the pit.

Defendant’s motion for directed verdict wa§ sustained. The main question here is whether there was sufficient evidence of negligence of the City to require the submission of that issue to the jury. Under the rule applicable in such cases the evidence will be considered in the light most favorable to plaintiff.

Mr. Vincent’s body was discovered in the pit, March 25, 1952. He was last seen alive shortly after 11:30 p. m., March 24, by the driver of a curbliner bus which had transported decedent from downtown Des Moines to the bus terminal at East Thirty-third Street and Easton Boulevard. From that point decedent had frequently walked east on Easton Boulevard about three city blocks to and across the bridge, and several blocks farther to his home. For the first two blocks east of the bus terminal there was a cement sidewalk along the north side of Easton Boulevard. Between the east end of this sidewalk and the pedestrian’s lane on the north part of the bridge, a distance of approximately one block, the sidewalk maintained by the City was .a cinder path several feet in width, without definite margins. Photographs show this cinder path was rough and somewhat irregular. At the corners of the bridge were concrete extensions of side rails, about twelve feet long, which flared outward several feet. For most of its distance the east and west cinder path ran on a line which would have carried it some feet north of the north edge of the bridge and abutments and into the pit. As it neared the bridge the cinder path curved to the south, ran inside the concrete railing and connected with the sidewalk on the north part of the bridge. The bridge is a few feet south of a bridge it replaced. A witness testified: “When the old bridge was there we had a cement sidewalk then leading all the way to the old structure * * #. At that time the cement sidewalk led directly to the north side of the old structure. The sidewalk was [273]*273straight.” The City made the curved, cinder p.ath as the approach to the new bridge which was constructed about 1943 or 1945.

The pit or hole was in the west bank of the creek. Apparently it had been formed by the washing away of the soil by the discharge of water from an eighteen-inch concrete pipe installed by the City to carry surface water from a ditch on the south side of the cinder path. This drain pipe passed underneath the cinder path and through the west bank of the creek. Since about 1943 or 1945 the washing away of the soil by the water discharged by the pipe had caused the pit or hole to encroach upon the west bank of the creek a few feet farther (west) and the end (east) section of the drain pipe had become exposed and unsupported and had fallen off. This disconnected section, several feet long,- had been lying in the bottom of the pit for some years. The walls of the pit were precipitous. Its depth was estimated at ten to fifteen feet, its width eight feet. Glenn Davis testified the west edge of the pit was ten or twelve feet west of the west end of the bridge. The pit was in line with the cinder path, before the path turned into the bridge. This would locate it within the line of the street but outside the traveled portion thereof.

Exhibit E is a photograph taken the morning the body was found. The camera apparently pointed west. It shows the pit, with a light layer of snow on the ground, the end of the drainage pipe, the disconnected section of pipe in the bottom of the pit and beside it, indistinctly, decedent’s body. It shows .also the west end of the bridge and a police car which brought the coroner to the place.

[274]

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Bluebook (online)
60 N.W.2d 240, 245 Iowa 270, 44 A.L.R. 2d 616, 1953 Iowa Sup. LEXIS 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholson-v-city-of-des-moines-iowa-1953.