[1] In March 1929, O.G. Waffle sold to W.O. Blake the North 60 feet of Lot 8, in Block 30, of the City of Marion, under an installment contract, and Blake entered into the possession thereof. Waffle did not retain or exercise any control over the property after the sale. There was a dwelling house on the lot and Blake and his family occupied it as their residence.
This property is on the west side of 13th Street, which runs north and south, in the City of Marion, and is between 5th and 6th Avenues. Fifth Avenue is south and Sixth Avenue is north, the Avenues running east and west. The C.M. St. P. Railway tracks run along 6th Avenue. The north line of Blake's lot came to the alley in the middle of the block and was approximately 120 feet from the south line of 6th Avenue. The block between the avenues is about 250 feet long. There was a house south of Blake's on the south half of Lot 8.
Thirteenth Street was paved with brick, the paving being 30 feet wide, between curbs. In front of Blake's house a sidewalk ran north and south, and between the curb and sidewalk there was a parking in which stood some maple trees. There was one tree to the northeast of Blake's house near the north line of his lot, and just south of the middle of the block which he wanted cut and removed. This tree measured about 20 1/2 inches in *Page 337 diameter, and was a hard maple. The tree stood in the parking some 3 or 4 feet west of the curb, and probably 6 feet from the sidewalk.
On June 4, 1929, Blake contracted with James Neff to cut and remove the tree for the price of $2.00 and the wood, Neff using his own tools and providing his own help. Neff had done work of that kind before, but he did not know whether there were any municipal regulations concerning the cutting of trees, and he and one other party went to the office of C.E. Drummond, who was mayor of the city. Drummond is a dentist, and they found him in his dental office. They told the mayor that Blake wanted the tree cut and removed and that he had engaged James Neff to do the work, and inquired if a permit was necessary. The mayor told them it was all right as far as he was concerned, that he had nothing to do with it. The mayor asked the parties to notify the fire department so they would not make a fire run over that street. As a matter of fact there was no city ordinance in Marion relating to the cutting of trees.
Delbert Neff is about 22 years of age, and was a student at Cornell College at Mt. Vernon. He came home on the evening of June 4, and at his father's request consented to assist him in cutting the tree. On June 5, 1929, James Neff, accompanied by his son, went to Blake's between 7 and 8 o'clock in the morning and went to work. Blake had gone away and did not return until evening. James Neff and his son Delbert did all of the work. After trimming a tree at the south of the one Neff had contracted to fell, they commenced operations on the hard maple. They first sawed off all of the branches to within 3 or 4 feet of the trunk, and cut out the top, using ropes to let the several branches onto the pavement, thus avoiding danger to passers-by. The branches as they were cut off were piled against the curb on the west of the street, leaving the east side clear for travel. After the removal of the branches in this way, a stump some 14 or 15 feet in height remained. Just before the Neffs were ready to saw the tree off, and while they were working with the branches, Joe Armstrong, an uncle of the plaintiff, a dray-man by occupation, drove north in a dump wagon. The Neffs finished the work at the branches after Joe Armstrong had passed, and had a man ready who dragged the several branches down the street and out of the way with a team so that the street *Page 338 was again clear of branches. They then went to work sawing the tree. When they had sawed through so that it was about ready to fall, an automobile came up from the south, and they stopped sawing, but as the car was on the east or right-hand side of the street going north, and out of the range of the tree, if it fell, they gave no warning. But apparently the tree was more nearly ready to fall than they thought. While they waited for the automobile to pass, they saw Joe Armstrong crossing the railroad tracks on 6th Avenue coming south on the right-hand side of the street.
It seems that Joe Armstrong had gone to the home of his nephew Reuben Armstrong, about the middle of the block, on the west side of 13th street, between 6th and 7th Avenues, which was just a block north of where the tree was being cut and on the same side of the street. Then, after remaining some 20 or 30 minutes, he arranged to take Reuben's son, William, the plaintiff, a child of about 3 1/2 years old, home with him. The child sat with Joe in the spring seat of the dump wagon, and Joe was driving the team, at a walk, as he crossed the railroad tracks on 6th Avenue going south.
It is at this point that the first material dispute in the evidence occurs. A synopsis of each contention follows:
Joe Armstrong says that when he crossed the railroad tracks he saw the men sawing on the tree, and that he checked up and brought his team almost to a stop, and just then Neff and his son stopped sawing, and stood up, one on each side of the tree, and that after seeing them stop, he drove on paying no further attention to them. In fact he denies looking at them afterwards, but directed his attention to something farther on down the street. He says he drove on down the middle of the street seeing no signals and hearing no warnings until he got opposite the tree when suddenly it fell across the front of the wagon and crushed him and the child, breaking Joe's leg, and severely injuring the child.
On the other hand, Neff and his son say that they stopped while the automobile passed north, and then saw Joe Armstrong with the child in the wagon just over the railroad tracks on 6th Avenue. James Neff asked his son if the tree was near enough off so that it could be felled before Armstrong got down there. The son answered that it could not, but it could have been done *Page 339 if they had not waited for the car. Joe Armstrong was driving to the right of the middle of the street. James Neff waved his hand and signaled him to stop. Joe came on. Delbert also signaled. Mrs. Blake who had come out of the house also signaled. Joe came on and Neff shouted to him to stop and waved both arms. Joe grinned, and slapped his horses with the lines, and said "Go on with your sawing," and kept on heedless of the warnings. When he got just opposite the tree it suddenly fell, and the injuries occurred.
The injured boy was immediately given hospital attention.
The charges of negligence, in the petition, against each of the defendants are six in number. The substance of said charges is as follows:
1. In felling the tree without giving warning to the public of their intention to fell the tree.
2. In felling the tree without barring travel on 13th Street, past the location where the tree fell.
3. In felling said tree without warning the plaintiff.
4. In permitting the public, and especially the plaintiff, the use of said street at the time the tree was being felled.
5. "In so cutting said tree that it fell across a public street where the plaintiff was traveling."
6. In failing to station sentinels on said 13th Street, both north and south of the location of the tree.
The defendants answered by general denial. Seventeen errors are relied upon for reversal.
I. At the close of the plaintiff's evidence, and again at the close of all of the evidence, the defendant City of Marion moved for a directed verdict, by a motion containing nine specific grounds. In substance, this motion challenged the right of recovery against the City upon the ground that there was no defect in the street and no negligence on the part of the City, and that Blake and Neff were using the street for a lawful purpose; and if there was any negligence, it was theirs, and that the City was not liable for failure to exercise governmental powers in policing the street; and in any event, the negligence of the City, if any, was not the proximate cause of the injury. Except as to whether any, and if so, what warnings were given Joe Armstrong as he approached the scene of the accident and as to his *Page 340 conduct in relation thereto, there is no substantial dispute in this record.
There was no ordinance in Marion governing the cutting of trees. It is not claimed that any agent or representative of the defendant City took any active part in the removal of the tree. There is no claim whatever that there was any physical defect in the street. The most that can be said on behalf of the plaintiff's case is that the Mayor of the City was informed that Blake personally, or by his employee, contemplated the cutting of the tree. It may also be said that the Mayor contemplated that for a short time at least, the felled tree across the paved portion of the street would constitute an obstruction concerning which the Fire Department should be warned, presumably so that they would not lose any time in attempting to make a fire run while the tree remained on the street.
The duties of Municipal Corporations in reference to streets is found in Section 5945 of the Code of 1927, which reads as follows:
"They shall have the care, supervision, and control of all public highways, streets, avenues, alleys, public squares, and commons within the city, and shall cause the same to be kept openand in repair and free front nuisances." (Writer's italics).
The City's liability is restricted to keeping the streets open and in repair and free from nuisances. There is no claim in this case that a nuisance existed. Plainly stated, it is the claim of the plaintiff that the City failed in its duty in not barring travel on the street either by stationing sentinels thereon, or otherwise warning the plaintiff against the danger incident to the felling of the tree.
It is the claim of the defendant City that all such charges pertain to the governmental functions or duties of the City for a breach of which the City is not liable. It is the further contention of the defendant City that the duty of the City relates only to construction, maintenance and repair of the street and that a municipality cannot be held liable for failure to protect citizens against accidents occurring on its streets for reasons other than defects therein or by reason of a nuisance.
We think the appellant City's position is well taken. In Harris v. Des Moines, 202 Iowa 53, this court considered an *Page 341 action for damages for injury to a child while coasting in the street. The accident arose out of a collision with an automobile. The street where the accident happened had been reserved and set apart for coasting. This court said:
"On the threshold of this case, it is well to observe that we are not dealing with a liability resulting from a defect in the condition of a street. The condition of a street is one thing, and the manner of its use by the public is quite another thing. A municipality does not guarantee its citizens against all casualties incident to humanity, and cannot be called upon to compensate, by way of damages, its inability to protect against all accidents and misfortunes."
The court continues to quote with approval from City of Lafayette v. Timberlake, 88 Indiana 330, as follows:
"The manner in which a highway of a city is used is a different thing from its quality and condition as a street. The construction and maintenance of a street in a safe condition for travel is a corporate duty, and for a breach of such a duty an action will lie, but making and enforcing ordinances regulating the use of streets brings into exercise governmental, and not corporate powers, and the authorities are well agreed that for a failure to exercise legislative, judicial or executive powers of government, there is no liability."
In a note to Douglass v. County Court, 22 A.L.R. 585, (90 W. Va. 47, 110 S.E. 439) the Court said:
"The decided weight of authority is to the effect that the terms `defects,' `want of repairs,' etc., as used in statutes rendering counties, towns, or other political divisions liable for damages resulting from such defects, etc., in public streets or highways, relate only to inert objects or structural defects, so that a city or other political division cannot be held liable under such statutes for damages resulting from negligent or unlawful use of such a public way by a moving object."
Numerous citations are appended to this note from various jurisdictions in support of the text.
The duty to keep streets and sidewalks in a reasonably safe condition for travel has been held to relate only to their *Page 342 construction, maintenance and repair, and a municipality cannot be held liable for inability to protect citizens against all accidents occurring in its streets for reasons other than defects therein. 43 C.J. 1009, Section 1793, and cases cited.
This duty has been stated in another way, as follows:
"The improper condition of a street or highway which gives rise to municipal liability therefor must be some inert matter encumbering the highway or some structural defect therein. An improper or unlawful use of the highways by persons, animals, vehicles, engines, or objects, while movable or actually being moved by human will or direction, and neither fixed nor stationary in one position within the highway, does not render a municipality liable." (See Note to Dudley v. Flemingsburg, 1 Ann. Cas. 958, at 960.)
Manifestly this has no application to acts of the municipality through its agents and employees when within the scope of their duties.
Another eminent author has said:
"Generally speaking, it may, perhaps correctly, be said that,under these statutes, (fixing corporate liability of towns), a town or city charged with the duty of keeping its highways or streets in repair performs that duty when the traveled way iswithout obstruction or structural defects which endanger thesafety of travelers, and is sufficiently level and smooth,guarded by railings where necessary, to enable persons, by theexercise of ordinary care, to travel with safety andconvenience." (4 Dillon on Mun. Corp., 5th Ed., Section 1694.) (See, also, Barber v. City of Roxbury, 11 Allen 318 [Mass.].)
In the case at bar, there was no physical defect of the street. Moreover, the owner of the real estate had such an interest in the tree that he had the right to remove it. Kemp v. City of Des Moines, 125 Iowa 640. There was no ordinance in the City of Marion regulating or prohibiting such removal. Undoubtedly the owner of the tree had the right to use the street in any lawful way for the removal of the tree. In a sense, the mere felling of the tree into the street was in principle a no greater use of the street than temporarily obstructing the street with a truck on which the tree might be loaded. *Page 343
There was a momentary danger from the falling of the tree. So far as the owner of the tree and his agents engaged in felling it are concerned, that operation required care; but assuming for the moment that the defendant City had such notice of the purpose to fell the tree as contended, nevertheless, the city had a right to assume that the owner of the tree and his agents would exercise a proper degree of care to prevent injury to travelers upon the street at the particular moment of the felling of the tree.
In Holmquist v. Construction Company, 169 Iowa 502, the administratrix of a pedestrian who was killed, sued the City of Des Moines and the Construction Company erecting a building on one of the streets in Des Moines for damages.
During the early stages of the construction, a permit had been given to barricade the sidewalk in front of the construction. Later this was removed on order from the Mayor and a new barricade was erected extending about 4 1/2 feet from the sidewalk to the building instead of across the sidewalk. The deceased was injured by a workman falling from the top of the construction, and subsequently died. This court said, p. 515-169 Iowa:
"In determining whether the city had performed its duty under the statute, the duty enjoined upon it by Sec. 753 of the Code, (now Section 5945) must be considered in the light of the right of the landowner to so use the street, in view of such lawful use by the landowner of a portion of the sidewalk and street. The city had the right to assume that the owners of buildings abutting the street, or the construction company, would exercise a proper degree of care to prevent injury to travelers upon the street. Parmenter v. City of Marion, 113 Iowa 297."
In Heller v. Town of Portsmouth, 196 Iowa 104, a case where a person on the street was injured by the firing of anvils in a celebration, the original use of the anvils in the street having been acquiesced in by the city authorities, this court said:
"The defendant town was not bound to anticipate the negligent act of a third party, and it was the improper handling of the anvil by strangers to the town that proximately caused the injury."
In Parmenter v. City of Marion, 113 Iowa 297, the plaintiff *Page 344 was injured by being struck by a bale of hay, blown from a platform about 8 feet above the sidewalk, extending out from the front of the building near the street and over a portion of the sidewalk. This court said:
"Defendant was not bound to anticipate the negligent act of a third party, and it seems clear to us that there was no negligence in simply permitting the platform to remain in the condition it was in. * * * With proper care on his part (owner of the building) there was no danger to passers-by; and the city, in the absence of notice to the contrary, had the right to assume that he would use that degree of care. Such notice as it had of the use was not sufficient to charge it with knowledge that he was making a nuisance of the place, and was likely to injure travelers."
See also McCarthy v. Munising, 136 Michigan 622; O'Rourke v. City of Sioux Falls, 4 S. Dak. 47; Robinson v. Greenville, 42 Ohio State 625; Marth v. Kingfisher, 22 Okla. 602; Everly v. Adams, 95 Kansas 305.
The case at bar is based generally on the proposition that the City, having notice that the tree was about to be felled, did not exercise its governmental powers in policing that portion of the street where the tree was to fall, or take such other steps as would prevent injury from the felling of the tree. It is thus the claim of the plaintiff that the city was negligent in the performance of one or more of its governmental duties.
It is the established rule in this state that a city is not liable for negligence in the performance of its governmental functions. This is so familiar that a citation of authorities is unnecessary, but see Leckliter v. City of Des Moines, 211 Iowa 251, and cases cited.
This court has frequently said that for injuries resulting from the acts of third parties very similar to the facts in this case, the city was not liable.
In Ball v. Woodbine, 61 Iowa 83, the party was injured by the shooting of fireworks on the street.
In Parmenter v. City of Marion, 113 Iowa 297, a pedestrian was injured by being struck by a bale of hay, blown from a platform.
In Heller v. Town of Portsmouth, 196 Iowa 104, the party *Page 345 was injured by the shooting of an anvil, in a celebration, in the street.
In Harris v. City of Des Moines, 202 Iowa 53, the injuries were caused by coasting in the street.
In each of these cases, the municipal officers had notice of the conditions and either aided or acquiesced therein. In each case recovery was denied.
This question has been very recently discussed in Reinart v. Incorporated Town of Manning, 210 Iowa 664, in which case this court held in substance that a municipal corporation is not liable to pedestrian for explosion of firecracker on a sidewalk even if officers of the city knew or should have known the street was being used as a place for exploding firecrackers.
See also O'Rourke v. City of Sioux Falls, 4 S.D. 47; Robinson v. Greenville, 42 Ohio St. 625; Addington v. Littleton, Ann. Cas. 1912C 753; Marth v. Kingfisher, 22 Okla. 602; Everly v. Adams, 95 Kansas 305.
As the injury in this case was not caused by any failure to properly construct, maintain or repair the street, but grew out of a use of the street, under the facts in this case, the city is not liable. The construction, maintenance and repair of the street or permitting inert objects to remain therein pertained to the proprietary powers and duties of the city; but such use of the streets as is here involved pertains only to the governmental powers and functions of the city, and the city is not liable. There is here no charge of a breach of a proprietary or corporate duty, nor is there any proof of any breach of any corporate or proprietary duty.
By way of résumé, although somewhat in repetition, let it be noted that the property owner had such an interest in the tree standing in the public parking as that he had a perfect right to cut it down. He had a right to use the street for that purpose. There was no ordinance in the City of Marion either prohibiting or regulating the matter of cutting down trees. Manifestly, if the owner of the tree had cut it down and permitted it to remain as an obstruction to traffic in the street for any considerable period of time, it would have, as such obstruction, constituted a nuisance. The owner, of course, had no right to fell the tree in such a manner as that it would strike anyone in the falling. *Page 346
In felling the tree, the owner was not violating any ordinance or committing any wrong, unless the felling was negligently done. He had a right to fell it in the street, provided that he, in felling it, did not cause it to fall or permit it to fall so as to injure the person or property of another.
It was just as much the right of the owner of the tree to fell it into the street as it was the right of the owner of the tree to have a truck backed up against the curb so that the tree could be felled into or onto the truck. The mere standing of the truck during the process of felling the tree would, in a sense, constitute a kind of obstruction in the street.
Permitting the tree to remain lying on the paving for the very short time necessary to enable those removing the tree to either cut it into smaller pieces or to attach a truck to it to remove it, or to otherwise remove it, would be an obstruction in the street entirely similar to the obstruction in the street which is caused by the backing up of a truck or van for the loading or unloading of goods or property of any kind. Merely backing up a truck or a van to the sidewalk for the purpose of loading or unloading goods is not negligence, nor is it an improper use of the street in the absence of an ordinance to the contrary, even though the van to some extent obstructs the street.
The felling of a tree onto the pavement not for the purpose of leaving it there, but in the process of removing the tree, is not a violation of any ordinance, nor is it an unlawful obstruction of the street, provided, of course, it is promptly removed.
The negligence in this case consisted of permitting the tree to fall at a time and in such a manner as that it caught Armstrong and the boy in the falling. It was not the cutting of the tree or the felling of the tree into the street that constituted negligence. It was the felling of it into the street at the particular time so that it caught the boy. It was the manner of the cutting that was negligent. In other words, everything the parties did in the matter of felling the tree would have been entirely proper had Armstrong and the boy not been at that particular spot where the tree fell at that particular time. That is to say, had the parties not felled the tree at that particular time and in that particular way so as to catch Armstrong and the boy, there would have been no negligence. The parties who were cutting the tree were mistaken as to the facts. They thought the tree *Page 347 would stand until after Armstrong got by. Armstrong evidently was of the same opinion. They were all mistaken. Had the tree fallen immediately before or immediately after it did, no harm would have followed and no one would have been guilty of negligence.
Assuming, though not deciding, that notice to the mayor was notice to the City of Marion, all the record shows is that the mayor was notified of the intention of the parties to at some time cut down the tree. No time was specified. The manner in which the tree was to be cut down was not specified. It is true the mayor apparently assumed the tree was to be cut down by permitting it to fall on the pavement, but the mayor had a right to assume that the parties in cutting the tree would do so without negligence. The mayor knew the tree could be cut down without any negligence. He knew the tree could be felled so as not to injure anyone. The felling of the tree was not in and of itself dangerous. Felling the tree was not a nuisance. The mayor had no notice the tree was going to be felled in a negligent manner. The mayor had no notice of any negligence, present or to happen. The mayor had a right to assume that the parties in cutting down the tree would exercise due care to prevent injury to travelers. Holmquist v. Construction Company, 169 Iowa 502; Heller v. Town of Portsmouth, 196 Iowa 104; Parmenter v. City of Marion, 113 Iowa 297.
The absence of notice of any negligence creates the distinction between the case at bar and many of the cases cited by the appellee.
For illustration, in the case of Bliven v. City of Sioux City,85 Iowa 346, there was a defective bill board near a sidewalk. The city had actual or constructive notice of its defective condition and, therefore, its danger to travelers on the sidewalk. It was negligence on the part of the city to permit the bill board, in that condition, to stand; therefore the city had actual or constructive notice of negligence; while in the case at bar, the mayor had no notice of any negligence. No negligence occurred until the very instant that the parties who felled the tree felled it in such a manner that it fell upon Armstrong and the boy. The mayor had no notice it would be so felled. It could have been safely felled. The parties cutting the tree were not agents of the mayor or the city. *Page 348
Parenthetically, it may be said that if Armstrong, an adult, were here claiming damages, his conduct disclosed in this case would have clearly constituted contributory negligence preventing him from recovery.
As the mayor had no notice, actual or constructive, of any negligence, the city was under no obligation to undertake to prevent the act of cutting down the tree or to barricade the street where the tree was to be cut down or to place policemen at the entrance to prevent traffic into the street.
As has been stated, the liability of the city in this state is purely statutory. The duty of the city is limited. The statute provides, "It shall cause the same to be kept open and in repair and free from nuisances." This duty relates to construction, maintenance and repair. Manifestly, a municipality cannot be held liable for failure to protect citizens against all accidents occurring on its streets for reasons other than defects therein. The statutory duty pertains to the quality or condition of the street, but not to the use that is made of the street. Making and enforcing ordinances regulating the use of streets brings into exercise governmental powers and not corporate powers, and the authorities are well agreed that for a failure to exercise legislative, judicial or executive powers of government, there is no liability against the city.
Defects and want of repairs as used in statutes generally relate only to inert objects or structural defects, and the municipality cannot be held liable under such statutes for dangers resulting from the negligent or unlawful use of a public highway by a moving object.
In the case at bar, the injury resulted from a moving object. There was no defect or want of repair of the streets, nor was there any nuisance created by any inert object or structure. In substance, the complaint of the plaintiff in this case is bottomed upon the alleged failure of the City of Marion to police the street while the tree was being felled. Manifestly, if there was any failure on the part of the city in that regard, it was a failure of governmental duty and not a failure of a corporate duty.
As previously stated, the mayor had no notice of any negligence. He merely had notice that something was to be done which might possibly be done in a negligent way resulting in *Page 349 injury to someone. The rule for which the plaintiff contends as against the city would prove disastrous to every organized community.
For illustration, we will assume that the mayor of the City of Des Moines, in coming to his office in the morning, discovers that a telephone company is proceeding with repairs on a certain pole on one of the streets of Des Moines. A new cross-arm is being placed upon a pole. The pole stands near the sidewalk. In elevating the cross-arm to its place and in fastening it to the pole, it may fall and strike a pedestrian on the sidewalk. Or the mayor may see that an old pole is being taken down and a new one is to be put in its place. In the performance of that work either the old pole or the new pole may be so negligently handled that it may fall on a passing automobile on the street, or it may be so negligently handled that it may fall upon a pedestrian on the sidewalk. As the mayor comes to his office, he sees a van backed up in the street to a front sidewalk of a residence. The van is full of furniture. Manifestly, the furniture is to be carried across the sidewalk into the house. It may be so negligently carried as to strike a pedestrian on the sidewalk. The mayor sees a truck standing on a downtown street backed up to a front door of a store. Boxes of goods are to be unloaded from the truck into the store. Those boxes of goods may be negligently handled so as to strike and injure pedestrians on the sidewalk. Many other similar illustrations might be given. Must the mayor in each of those cases proceed to block off the street and prevent traffic, or must the mayor furnish a squad of policemen to protect pedestrians to avoid injury to them, notwithstanding the fact that the mayor has no notice, either actual or constructive, that there is going to be any negligence in connection with any one of those operations? Manifestly, this leads to an absurdity.
Plaintiff's counsel relies on a number of cases which only need passing consideration to show they are not in point, when the distinction between defects and obstructions involving the quality or the condition of the street and the negligent use of the street by some member of the public is considered.
In Nocks v. Town of Whiting, 126 Iowa 405, the defect was a hole in the street. In Stafford v. Oskaloosa, 57 Iowa 748, there was a mound of earth in the street. In Spiker v. Ottumwa,193 Iowa 844, there was an open trench in the street. In Cooper v. *Page 350 Oelwein, 145 Iowa 181, the defect consisted of a cement block raised above the level of the sidewalk over which plaintiff tripped. In Edwards v. Cedar Rapids, 138 Iowa 421, plaintiff tripped over a loose board in a sidewalk. In Spurling v. Town of Stratford, 195 Iowa 1002, plaintiff fell into a ditch dug in the street. In Pace v. Webster City, 138 Iowa 107, the injury was caused by a ditch dug across the sidewalk. In Farrell v. City of Dubuque, 129 Iowa 447, the defect was a timber from a frame work built into the street. In Krska v. Pocahontas, 200 Iowa 594, there was a coal hole in the sidewalk. In Ward v. District of Columbia, 24 App. D.C. 524, the officers of the municipality themselves felled the tree in the performance of their duties, and did it so negligently that a person was injured. In Colorado Springs v. May, 20 Colo. App. 204, 77 P. 1093, the tree which caused the damage was cut by a city employee in the performance of his duty, and he did so negligently. In Moore v. Townsend, 78 N.W. 880 (Minn.), a 40-foot ladder was set up against a building, the lower end extending over the sidewalk and resting in the gutter. It had stood thus for nearly two weeks when it was blown over onto plaintiff. The case was disposed of on the theory of a nuisance.
Upon the record in this case, there was no allegation or proof of any breach of the proprietary or corporate duty of the City of Marion. For a breach, if any, of its governmental powers, the city was not liable. It follows that the plaintiff cannot recover against the city of Marion.
[2] The defendant Neff complains because of instruction No. 6 given by the court to the jury. In that instruction, the jury were told that the plaintiff, a child of tender years, is relieved of any responsibility for any possible negligence on the part of the driver of the vehicle, Joseph Armstrong, unless the jury find from the evidence that the negligence of said Joseph Armstrong, if any, was the sole and proximate cause of the plaintiff's being injured.
In Raskin v. City of Sioux City, 198 Iowa 865, in which case the plaintiff, at the time of the accident, was a boy about five or six years of age, and while he was riding in an automobile driven by his father, the vehicle was precipitated, as alleged in the petition, by a ditch or depression, resulting in the injury of the boy. This court said, among other things: *Page 351
"The law of this state is well defined that a child of the age of appellant cannot be held guilty of negligence as a matter of law. The burden to prove freedom from contributory negligence was on the plaintiff; but when he proved that he was six years of age, a prima-facie case of freedom from contributory negligence was established. * * * We are committed to the doctrine that negligence of a father cannot be imputed to his child, under the circumstances of the instant case. * * * Briefly stated, the negligence of a father contributing to an accident is available as a defense to his action; but such contributory negligence is no defense in any action by the child for the recovery of damages resulting from injuries to his own person caused by the negligence of a third party. Fink v. City of Des Moines, 115 Iowa 641; Ives v. Welden, 114 Iowa 476; Wymore v. Mahaska County,78 Iowa 396."
See, also, Stutzman v. Younkerman, 204 Iowa, 1162.
There was no error in the Court's instructions on that question.
III. The defendants jointly offer many complaints in reference to the instructions as a whole and several complaints in reference to specific instructions. These complaints deal largely with the defense of the City.
So far as the defendant Neff is concerned, we have examined each of the instructions carefully, and we reach the conclusion that the record contains no prejudicial error so far as the defendant Neff is concerned.
To enter into a detailed discussion of the various instructions and the complaints made in relation thereto would unduly extend this opinion. Suffice it to say we are satisfied that the defendant Neff had a fair trial.
The negligence of Neff was a question for the jury. The instructions, when read as a whole, fairly and correctly submitted that question. There was sufficient evidence to warrant the submission.
The negligence of Joe Armstrong, if any, was not the sole proximate cause of the account, as Neff contends. There is a dispute in the record as to the warning, if any, given by Neff to Armstrong. On the whole record, which has been carefully considered, we find no cause to disturb the finding against Neff. *Page 352
As to the appeal of defendant Neff, the case is Affirmed.
As to the appeal of the City, the case is Reversed.
FAVILLE, C.J., and ALBERT, De GRAFF, and MORLING, JJ., concur.
EVANS, STEVENS, WAGNER, and KINDIG, JJ., dissent.