Armstrong v. Waffle

• Decision Date: 05 May 1931
• Docket Number: 40369
• Citation: Armstrong v. Waffle, 212 Iowa 335, 236 N.W. 507 (Iowa 1931)
• Parties: WILLIAM ARMSTRONG, Appellee, v. O. G. WAFFLE et al., Defendants; JAMES NEFF et al., Appellants
• Court: Iowa Supreme Court

236 N.W. 507

212 Iowa 335

WILLIAM ARMSTRONG, Appellee, v. O. G. WAFFLE et al., Defendants; JAMES NEFF et al., Appellants

No. 40369

Supreme Court of Iowa, Des Moines

May 5, 1931

Appeal from Linn District Court.--ATHERTON B. CLARK, Judge.

Action at law for damages for personal injuries sustained by Plaintiff, a minor, 3 1/2 years of age, by reason of the felling of a tree upon a street in the City of Marion, by the Defendant, James Neff, and others. The Court sustained a motion for a directed verdict in favor of the Defendants Waffle and Blake. The jury returned a verdict against the City of Marion and James Neff. They appealed. The facts appear in the opinion. Affirmed as to Defendant Neff. Reversed as to City of Marion.

As to the appeal of defendant Neff, Affirmed. As to the appeal of the City, Reversed.

Chas J. Haas and D. H. Smith, for appellants.

Crissman Linville & Bleakley, for appellee.

GRIMM J. FAVILLE, C. J., and ALBERT, DE GRAFF, and MORLING, JJ concur. EVANS, STEVENS, WAGNER, and KINDIG, JJ., dissent.

OPINION

GRIMM, J.

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 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 drayman 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 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 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 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...