Armstrong v. Waffle

On the 5 day of June, 1929, William Armstrong, while riding with his uncle, Joe Armstrong, in a wagon drawn by two horses, was injured by a tree which fell from the parking into the traveled portion of a public street in Marion. William was but three years old. His Uncle, an adult, was driving the team southward over Thirteenth Street, a public thoroughfare of the city. The tree was a hard maple, which, previous to its falling, had stood on the west side of the street between the paved portion thereof and the sidewalk. It appears that the tree was on the street approximately four feet west of the pavement and about six feet cast of the sidewalk. This tree was apparently 20 1/2 inches in diameter.

O.G. Waffle, a defendant, originally owned the lot abutting upon the parking wherein the tree stood. At the time in question, however, the defendant, W.O. Blake, was the owner of the premises under contract or otherwise. In any event, it was the defendant Blake, who contracted with the defendant Delbert Neff and the defendant-appellant James Neff for the removal of this tree.

A portion of the tree-top first had been removed by the defendant Delbert Neff and the appellant James Neff, and then these men sawed near the bottom of the tree until the remainder thereof fell into the traveled portion of Thirteenth Street. That part of the tree which fell was probably about 14 feet in length. Serious and severe injuries were received by William Armstrong, and the plaintiff-appellee brings this action to recover damages therefor.

After a trial to the jury, a verdict was returned in favor of the defendants, O.G. Waffle, W.O. Blake, and Delbert Neff, but in addition thereto the jury found in favor of the appellee, against the appellant James Neff and the defendant-appellant, The City of Marion, Iowa. Consequently James Neff and The City of Marion appeal. Many grounds for reversal are stated by the appellants. These will be considered now in the order named.

I. Appellants primarily argue that the City of Marion is not liable for the damages sought, because the felling of the tree in no event amounted to a defect in, or obstruction of, the public street. Manifestly appellants' position is without foundation.

Section 5945 of the 1927 Code provides:

"They (cities and towns) 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 open and in repair and free from nuisances."

Under the foregoing section, it repeatedly has been held by this court that it is incumbent upon the city to keep its streets free from obstructions and defects. "Defects" and "obstructions," as thus understood, has been applied not only to depressions or holes in the roadbed and improper objects on the surface thereof, but also to those things above and adjacent to the traveled way which endanger the safety of those properly using the public thoroughfare. Bliven v. City of Sioux City, 85 Iowa 346; Farrell v. City of Dubuque, 129 Iowa 447; Nocks v. Town of Whiting,126 Iowa 405; Beazan v. Mason City, 58 Iowa 233; Pace v. Webster City, 138 Iowa 107; Wheeler v. Fort Dodge, 131 Iowa 566; Kiple v. Town of Clermont, 188 Iowa 248; Spiker v. City of Ottumwa,193 Iowa 844; Krska v. Town of Pocahontas, 200 Iowa 594; Spurling v. Stratford, 195 Iowa 1002. Quoted excerpts from the foregoing cases will illustrate the thought. During our discussion in Bliven v. City of Sioux City (85 Iowa 346), supra, (a case involving a billboard on the street), we said:

"It is the duty of a city to keep its streets open and in repair, and free from nuisance. * * * This duty extends, not merely to the surface of the street or walk, but to those things within its control which endanger the safety of those using the street or walk properly. It may not be the duty of a city to open to public travel a given street to its full width, and it may not be its duty to construct a sidewalk thereon; but when it has assumed that obligation, it should make the street and the walk reasonably safe for the uses for which they are intended. A `defect' is defined to be a want or `absence of something necessary for completeness or perfection.' Webster's dictionary. It also includes the idea of a fault or want of perfection. In the statutory sense a street or sidewalk is defective when it is not in a reasonably safe condition for the use for which it is intended. That condition may be due to improper construction, to poor materials, or other causes. It may be due to the presence of something which is a menace to the safety of the users of the way, as well as to imperfect construction or the absence of needed labor or material. In Drake v. Lowell, 13 Metc. (Mass.) 292, the city was held to be liable for damage caused by the fall of an awning which extended over the sidewalk, although the walk under the awning was in good condition."

Again this court declared in Nocks v. Town of Whiting (126 Iowa 405), supra, (a case involving a defect in the street):

"That cities and towns are required to keep all streets and public places within their limits, and which are open for public use, free from dangerous obstructions and pitfalls, and in a condition of reasonable repair, is the unquestioned rule of law in this State. And the requirement is broad enough to cover not only the purposes of public travel, but any use to which the street may be subjected not in itself violative of any established rule of law, and hence improper and illegal. In other words, the duty of the city or town does not end when it has prepared a way over which those engaged in actual travel may pass with convenience and reasonable safety. Having control of the streets and public places, and such having been thrown open to the public use, it owes the further duty to protect users lawfully entering thereon from dangerous defects which in reason should not have been allowed to exist. The principle involved is that which applies to the case of an owner of private grounds who throws the same open to and invites a public use thereof. He may not create a dangerous condition therein, or knowingly continue a created danger, not obvious in its character, and escape liability for injuries resulting therefrom."

Likewise in Kiple v. Town of Clermont (188 Iowa 248), supra, (a case involving wires across a street), reading on page 250; we stated:

"There is a telephone pole on the south side of (the) * * * street; on the opposite, or north, side, an electric light pole. This south or telephone pole was about 20 feet high, with a diameter of 5 inches at the top, and about 12 inches at the bottom. * * * Several days prior to the happening of the accident, the mayor, in company with others, stretched (the) * * * wires from the north pole to the south pole over this street. The street was about 60 feet wide. * * * To these wires a banner was attached advertising a Chautauqua meeting to be held in defendant town. * * * Between the time of the accident and the putting up of these wires and this banner, and, we take it, some time before the accident, normally high winds prevailed, and the telephone pole on the south side was found by passers-by to be leaning towards the street. * * * At the time of the accident, this south or telephone pole had become so loosened from its foundation that it leaned towards the street sufficiently to allow these wires to sink or sag, so that the plaintiff and her vehicle did come in contact with them. * * *"

Continuing on page 251, we further said:

"If we assume that the town did not know of this condition, or if we assume, as a matter of law, that the condition that caused the injury had not existed for sufficient time to charge the town with notice, we turn then to a consideration of the causes which led up to and produced the condition which rendered the street admittedly unsafe. This involves a consideration of the duty of the city to exercise reasonable care to anticipate and guard against injuries which may reasonably be expected to flow from those things which the city permits to exist on, beside, or over the street, that do not, undisturbed, immediately make the street unsafe, yet may, through the operation of natural laws or uncontrollable natural agencies on the thing permitted, produce conditions that render the street unsafe; that is, whether the city is liable for a failure to exercise reasonable care to guard the traveler on the street from consequences that may reasonably be expected to flow from the operation of the elements on the thing permitted. If the defendant permitted the original condition to exist, and, in the exercise of reasonable care, should have anticipated the consequences that might and did follow, then it cannot be heard to complain that it did not have notice that consequences reasonably to be expected did follow; for it is held to know that which it could have anticipated by the exercise of reasonable care, and could, by such care, have anticipated and guarded against."

Also similar language was used by this court in Krska v. Town of Pocahontas (200 Iowa 594), supra, (a case involving a defective cover of a coalhole in a sidewalk), reading on page 596:

"The rules of law applicable to the duty of a town or city with respect to the safety of its sidewalks are well settled. It is required to exercise reasonable diligence to maintain them in a reasonably safe condition; and this duty extends, not merely to the surface of the walk, but to those things within its control which endanger the safety of those properly using the walk."

Thus it is seen that this court, while interpreting Section 5945 of the Code, above quoted, has considered that the legislative language therein set forth is broad enough to include trap-doors, wires across the street, banners extending from one side of the street to the other, billboards, and many other objects. The duty placed upon the municipality, then, is not limited to mere construction or maintenance of the pavement or the roadbed itself. Naturally, the inquiry here is — Does such statutory language include the falling tree, under the facts and circumstances of this case?

A day or two before the tree was sawed down, those interested went to the Mayor of the appellant city and asked for permission to fell the tree. In response to the request for such permission, the Mayor stated that there were no ordinance requirements, and that the applicants could proceed with their undertaking. When so doing, the Mayor told those concerned that notice of the tree's being sawed down should be given the fire department in order that the firemen, in case of a fire, would not drive their vehicles over such portion of the street. Obviously, within the purview of said statute, as interpreted by the authorities above cited and supported by those hereinafter to be noted, the appellant city under the circumstances, in permitting the tree to be felled into the traveled portion of Thirteenth Street, failed to keep the street open and free from nuisances.

Before being sawed down, the tree stood in the parking portion of Thirteenth Street, between the pavement and the sidewalk. It was contemplated by the Mayor, as well as by those who intended to saw down the tree, that the same should fall in the traveled portion of the street. Therefore, it was imperative that the firemen be so notified. Knowing that a large portion of a hard maple tree would fall from the parking into the traveled portion of the street where passersby might be struck and severely injured or killed, the city the jury could find was not performing its statutory duty under this record unless it stopped the act of felling the tree, which under the circumstances, constituted a nuisance. Under certain conditions, it might not be possible to fell a tree without interfering with travel upon a street, so if the felling of the tree is not to be prevented at least, a barricade should be placed across the street, proper signs put thereon, signals given, or sufficient warning made to the traveling public. The city had authority to do this, even though, under some instances, a lot owner may have a tree on the parking. Such right to have the tree on the parking does not mean that the lot owner has a right to fell that tree in the traveled portion of the street and thereby obstruct the thoroughfare or create a nuisance thereon. Assuming that he may have a right to cut down the tree under proper circumstances, yet it must not fall in the traveled portion of the highway and thereby become a nuisance.

Section 12396 of the 1927 Code, so far as material, provides:

"The following are nuisances: * * * 5. The obstructing or incumbering by fences, buildings, or otherwise the public roads, private ways, streets, alleys, commons, landing places, or burying grounds."

That nuisance, however, may be prevented or abated by the city. In Section 5739 of the 1927 Code, it is declared:

"They (cities and towns) shall have power to prevent injury or annoyance from anything dangerous, offensive, or unhealthful; to cause any nuisance to be abated, and to provide for the assessment of the cost thereof to the property. They may prohibit any public or private nuisance, and may maintain actions in equity to restrain and abate any nuisance."

So, too, Section 5945, previously quoted, demands that the city keep the streets open and free from nuisances. Said statutory duty prevented the city from consenting to the nuisance in the case at bar. Not only is that true, but also such statute imposed upon the city the duty to keep the street open and free from nuisances. Under the circumstances, the municipality in question had power to prevent the nuisance in the first place, or abate it after it was created. Section 5945 of the 1927 Code, before set forth, imposing upon the city the power and duty to keep streets open and free front nuisances, is not limited, as previously suggested, to the surface of the highway, but extends as well to conditions over the same and adjacent thereto. Application of that doctrine has been made in the foregoing cases to situations where wires were stretched across streets, or banners hung from one building to another, etc. Then any defect on the surface is not the only obstruction or nuisance covered by the statute, but that legislation includes an object overhead as well.

Consequently, said hard maple tree, when falling, as well as when resting upon the surface of the street, was an obstruction, and by permitting such felling of the tree the city did not keep its streets open and free from nuisances, as required by the statute. No prevention or abatement of the nuisance was attempted. There is support for appellee's contention that the street was not barricaded. Likewise, there is evidence to the effect that the city gave no warnings, signs, or signals of any kind regarding the imminent danger from the falling tree. Conflicting evidence appears concerning whether the driver of the team and wagon was notified. Therefore it was for the jury to make a finding of the facts. That body discharged this duty, and we cannot interfere with the result.

Other courts have considered the subject now under review and their conclusions are consistent with the suggestions made in our own opinions. The Massachusetts Court, in Valvoline Oil Company v. Inhabitants of Town of Winthrop, 126 N.E. 895, declared on page 897:

"There was evidence that the plaintiff while in the exercise of due care was traveling in a proper wagon which came in contact with the limb that in the course of time had grown over the traveled part of the way so near the surface of the street that it could be found to be an obstruction to persons traveling thereon. In these circumstances the limb could be found to be a defect which it was the duty of the town to remedy. While many cases have been considered by this court involving injuries to travelers on a highway caused by trees standing within the limits of the way, most of them have arisen because of the decayed condition of such trees. Nestor v. Fall River, 183 Mass. 265, 67 N.E. 248; * * * Yet we are of opinion that there is no sound distinction between the liability of a city or town for failure to guard against defects caused by trees within the limits of a highway which are old and decayed, and those which, although sound, in course of time cause a defective condition on a highway by growth. Anything in the state or condition of a highway which renders it unsafe for ordinary travel is a defect or want of repair."

So, too, the Kentucky Court, in City of Louisville v. Michels, 71 S.W. 511, suggested:

"It is the duty of a municipal corporation to maintain its streets in good condition and repair, so as to keep them reasonably safe for the traveling public. This imposes the duty of keeping them clear of obstructions which are dangerous to persons using them, and for failure to do so it is liable in damages to one who may be injured in consequence of such obstructions. This limb (the one in the Louisville case) was six or eight inches in diameter, and necessarily it had been an obstruction for some years."

Upon this same subject, the appellate court of Indiana, in City of Indianapolis v. Slider, 105 N.E. 56, stated:

"It is the duty of the city to keep the streets and sidewalks in a safe condition for use. Those who use the streets and sidewalks have a right to rely on the performance of this duty by the city, and they are not required to inspect them to see that they are safe for use. The fact that a casual passerby did not discover that a pole or tree which the city permitted to stand by the curb was rotten and dangerous would not conclusively establish the fact that such dangerous condition could not and should not have been discovered by the officers of the city, whose duty it was to keep the streets safe. * * * It has been held that the duty of a city in respect to keeping the streets safe is not limited to the surface thereof, but that it extends upward so as to impose a liability in favor of one using the street, occasioned by the falling of a defective cornice which the city had permitted to project over the sidewalk from an adjoining building. Grove v. City of Ft. Wayne, 45 Ind. 429, 15 Am. Rep. 262. No reason has been suggested why the same rule should not require the city after notice to remove a dead and rotten tree standing within the limits of the street."

To the same effect see Chase v. City of Lowell, 24 N.E. 212 (Mass.); Embler v. Town of Wallkill, 30 N.E. 404 (New York); Wright v. City of Chelsea, 93 N.E. 840 (Mass.); Donahue v. City of Newburyport, 98 N.E. 1081 (Mass.); McGarey v. City of New York, 85 N.Y.S. 861; Moore v. Townsend, 78 N.W. 880 (Minn.); Lundy v. City of Sedalia, 144 S.W. 889 (Mo.); Colorado Springs v. May, 77 P. 1093 (Colo.).

Appellants argue that the case at bar is no different in its facts than the circumstances presented by Parmenter v. City of Marion, 113 Iowa 297. In that case there was built, over the sidewalk, a platform 15 feet in length and 5 feet wide. A bail of hay was negligently permitted to fall from the platform on a pedestrian in the street below. When discussing the merits of that controversy, we concluded that the city could not anticipate the negligence of the man who carelessly permitted the hay to fall. Clearly that case is distinguishable from the present controversy. There the injury to the pedestrian was not caused by the falling platform or any other structure, but rather by the negligence of one who was moving a bail of hay on the platform. That negligence was the proximate cause of the injury. While the platform was being properly used, there was no danger, for that structure did not fall; but in the case at bar the very enterprise contemplated that the tree should fall in the traveled part of the highway. Necessarily that event would injure a traveler who happened to be in the way. Therefore, here the proximate cause of the injuries received by the child, William Armstrong, was the negligence of the city in permitting the tree to be felled without barricades or proper warning signs on Thirteenth Street to keep travelers from the dangerous portion thereof.

Travelers upon Thirteenth Street could not be protected from the danger created by the falling tree unless the public thoroughfare was barricaded, or effective and proper notice given in such a way as to keep the traveling public from that portion of the highway. Of course, the individuals who were sawing down the tree could not barricade the public street. Such barrier upon the public street could be placed by the city only, or at least by someone with the city's consent. Also a sufficient and effective warning sign, which, of itself would constitute an obstruction in the street and a barrier to public travel, could not be placed without the city's permission. At least, it is clear, under the circumstances, that the city did not, and had no right to, rely upon those cutting down the tree to barricade the street or otherwise place prominent signs or signals thereon, in order to keep the traveling public from the imminent danger involved. Furthermore, it is evident that the city did not even expect those engaged in felling the tree to place a barrier across the street or put other prominent signals or signs thereon, because the municipality asked that the applicants for permission to saw down the tree give personal warning to the fire department in order that the firemen would not drive up that street.

Other cases are cited by the appellants, but they all are easily distinguishable from the facts involved in the case at bar. Under the facts and circumstances disclosed by the record, the cause was properly submitted to the jury. It was for that body to say whether the city exercised the required care in protecting the traveling public from the falling tree. Likewise it was the duty of the jury to determine the facts relating to the proximate cause of the injury received by William Armstrong.

II. Notwithstanding the statute above quoted, it is necessary that the city have knowledge or notice of the dangerous condition in time to remedy the same before an accident. After such notice, the city is entitled to reasonable time in which to remedy the defect. This is the ordinary rule. Spiker v. The City of Ottumwa,193 Iowa 844; Cooper v. Oelwein, 145 Iowa 181; Farrell v. City of Dubuque, (129 Iowa 447), supra.

Here, however, the city had actual notice of the contemplated obstruction of the street a day or two before the tree had fallen. Such notice was ample. The notice here under discussion was given to the Mayor of the municipality by those who intended to cut down the tree. Appellants declare that the Mayor is not a member of the city council, and therefore has no duty relative to the maintenance and repair of streets. Section 5639 of the 1927 Code, among other things, provides:

"In cities and towns, the mayor shall have powers and perform duties as follows:

"1. * * * He shall be the chief executive officer thereof, and it shall be his duty to enforce all regulations and ordinances; * * *

"5. He shall be the presiding officer of the council with the right to vote only in case of a tie."

When discussing notice to city officers, we said in Cook v. The City of Anamosa, 66 Iowa, 427, reading on page 429:

"The city would undoubtedly have been affected by any notice of the defect given to its mayor, for he is its executive officer, and is clothed with general executive powers."

Again, we said in Shinnick v. City of Marshalltown, 137 Iowa 72, reading on page 73:

"It (the city) became chargeable with notice of the nuisance, if not responsible therefor, when it was erected, because notice to its chief executive officer was notice to it."

See also Pace v. Webster City (138 Iowa 107), supra.

Notice therefore was given to the city in sufficient time to prevent the dangerous condition of the street or properly barricade the public thoroughfare in such a way as to protect the traveling public. Reliance is made by appellants at this juncture upon Edwards v. Cedar Rapids, 138 Iowa 421, and Hoyt v. Des Moines, 76 Iowa 430. But those cases are not in point for the officers therein named were not general executive officers. Here, however, in the case now before us, the mayor was the chief executive officer, and therefore was the proper person to receive notice on behalf of the city. The information was imparted to him in his official capacity, and therefore the city is bound by the notice.

III. Further argument is made by the appellants at this point to the effect that although the statute above quoted contains the provisions therein set forth, and the city did have notice of the dangerous condition to be created on Thirteenth Street, yet there can be no recovery by appellee because the city's functions in the premises were purely governmental. If the duty of the city in the case at bar was no more than governmental, then, of course, the municipal corporation is not liable in damages for the torts of its officers. Leckliter v. City of Des Moines, 211 Iowa 251; Norman v. Chariton, 201 Iowa 279; Harris v. City of Des Moines, 202 Iowa 53. As was said in the Norman case, supra:

"It is a matter of universal judicial recognition that a municipality possesses and may exercise two classes of powers. The one is governmental in character, where, generally speaking, it acts as a sovereign, in government and control of its inhabitants and in their interest generally. The other is proprietary, ministerial, and, we have said, quasi private, where it acts for the private advantage of the inhabitants of the city, and in some measure for the city itself."

Then, if the power of the appellant City is proprietary or ministerial in character, as distinguished from governmental, there may be a liability for negligence. Concerning this, we further said in the Norman case, supra:

"That a municipal corporation is liable for an injury caused by a defect negligently permitted in its streets has long been the settled doctrine of this state. The liability has been predicated upon, or said to arise from, the power given by statute to improve the streets. * * * It was held at an early day that, the city council having directed a public improvement, `the further prosecution of it is purely of a ministerial character,' and that, `where the work is purely ministerial, the corporation is subject to the same rules which govern the individual.'"

Under the foregoing statute, the public streets in a city must be kept open and free from nuisances. By a long line of decisions, cited in Division I. above, this court has repeatedly held that the statute in question imposes upon the city proprietary or ministerial powers which are distinguishable from those purely governmental. This statute, therefore, removes the city from the realm of protection on the theory of governmental function and places it over into the sphere of personal liability under the principle of ministerial or proprietary duties. When the statute applies, the governmental function doctrine is not available to the city as a defense.

IV. But it is further contended that the city is not liable because the only failure on its part, if any, was to properly police the streets and furnish protection for the travelers thereon. Such failure of the municipality, it is argued, does not create a liability for damages. Authority for this contention, it is said, appears in Reinart v. Town of Manning, 210 Iowa 664; Ball v. Woodbine, 61 Iowa 83; Remy v. City of Shenandoah,184 Iowa 1370; Heller v. Portsmouth, 196 Iowa 104. Of course, the city had a duty to prevent or abate a nuisance, as before suggested, but assuming that such nuisance was not prevented or abated, then there was the duty to barricade, warn, etc. The cases last above cited involve actions against the city, to recover damages, by persons who were injured upon the streets through the explosion of fire crackers, anvils, etc. Manifestly, a review of our decisions will demonstrate that we always have made a distinction between the last-named cases, concerning explosives, and those under the above-named statute. Reinart v. Town of Manning, 210 Iowa 664; Wheeler v. Fort Dodge, 131 Iowa 566. A difference always has been recognized between the cases of non-liability for injuries caused by fireworks and other explosives, and the decisions placing responsibility upon the municipality because of its failure to keep a street open and free from nuisances under the statute. For instance, in an early discussion of this subject, we said in Ball v. Woodbine (61 Iowa 83), supra:

"The most that can be claimed from the averments of the petition, and what the pleader evidently intended to charge, was, that the town, by its failure to prevent the dangerous display (fireworks), was a party thereto. We think the facts show no more than a violation of an ordinance of the town, in which violation the officers of the town were active participants. It is well settled that cities and towns are liable for damages occasioned by obstructions negligently allowed to remain in the public streets of the corporation, and the like, and the authorities cited by counsel for appellant are actions for injuries of this character. These cases are founded upon the principle that the city, in the exercise of its municipal authority over public places, is guilty of negligence in the discharge of a duty within the scope of its powers."

Again, in Wheeler v. City of Fort Dodge (131 Iowa 566), supra, there was involved the liability of a city for injuries caused a woman upon a street by a performer who fell from a wire extending across the public way. While discussing this subject, we said in that case:

"Under the rule of these cases (Farrell v. Dubuque, 129 Iowa 477, and the other decisions set forth in Division I of this opinion), and of the great weight of authority in general, we regard it clear that the court was in error in holding as a matter of law that no negligence had been shown on the part of the appellee (the city). Whether or not a given structure in the street obstructs, or may obstruct, the public use or safety, is always under ordinary circumstances a jury question. * * * The conclusion as here reached is in no manner inconsistent with the decision in Ball v. Woodbine, 61 Iowa 83, where we held the city not liable for the act of its officers in discharging fireworks or failing to prevent such discharge by which the plaintiff was injured. The essence of the complaint in that case was either the personal misconduct of certain persons who happened to be officers, or the failure of such officers to properly police the city, and for such failure the cases are quite uniform in holding the city not subject to a claim for damages. In the case at barthe cause of action is nuisance created and existing in thestreets by the neglect or wrongful act of the city in violationof its express statutory duty to keep its streets open and freefrom nuisances." (The italics are ours.)

Consequently, it is apparent that the governmental function rule and the police duty doctrine, above discussed, do not apply when the negligence of the city arises from its failure to comply with the foregoing statute. Concluding, as we did in Division I above, it was for the jury to say whether or not, under the instructions, the city violated the statutory mandates. I would affirm.

Justices EVANS, WAGNER and STEVENS, JJ., join in the dissent.