Byerly v. City of Anamosa

• Decision Date: 31 January 1890
• Citation: 79 Iowa 204,44 N.W. 359
• Parties: BYERLY v. CITY OF ANAMOSA.
• Court: Iowa Supreme Court

79 Iowa 204

44 N.W. 359

BYERLY

v.CITY OF ANAMOSA.

Supreme Court of Iowa.

Jan. 31, 1890.

Appeal from district court, Jones county; J. D. GIFFIN, Judge.

Action to recover for injuries to plaintiff's horse and buggy, caused by the dangerous condition of a street in the defendant city upon which he was driving his horse and buggy. There was a judgment and verdict for plaintiff. Defendant appeals.Ezra Keeler, for appellant.

J. W. Jamison and M. W. Herrick, for appellee.

BECK, J.

1. The plaintiff was driving on Main street, in the city of Anamosa, and desired to go from Davis to Williams streets, which at this place is occupied by the track of the Chicago & Northwestern Railway. There was an engine standing on the street when plaintiff attempted to pass over this part of it, which, before he had reached Williams street, began moving. Main street, in this locality, had been filled five or six feet higher than the adjacent lots. There were no barriers or railings to prevent horses from going over the bank. Plaintiff's horse, which he was driving, became frightened at the moving engine, ran over the bank, and was killed. The buggy and harness were injured. The action is brought to recover for injuries to plaintiff's horse and buggy caused by defendant's negligence in failing to erect and maintain barriers or railings across the street.

2. Counsel for the defendant now insist that the court below erred in not granting a new trial on the ground that the evidence is insufficient to support the verdict. The objection is based on the claim that the evidence shows contributory negligence on the part of plaintiff, for the reason that he knew the place was dangerous, and he saw the engine ready to move, before going upon this part of the street. But going upon the street with the knowledge of the existence of conditions rendering it dangerous is not per se evidence requiring the conclusion that plaintff contributed to the injury. Ross v. Davenport, 66 Iowa, 548, 24 N. W. Rep. 47;Walker v. Decatur Co., 67 Iowa, 307, 25 N. W. Rep. 256;Munger v. Marshalltown, 59 Iowa, 763, 13 N. W. Rep. 642;Rice v. City of Des Moines, 40 Iowa, 638;Hanlon v. Keokuk, 7 Iowa, 488. The contributory negligence on the part of plaintiff was a question for the jury. It cannot be said that their finding on this branch of the case is so without the support of the evidence that it ought to be set aside.

3. No dedication of the part of the street where the accident in question occurred had, as we understand the case, ever been accepted by any ordinance of the city council. Indeed, there appears never to have been a formal dedication thereof by the land-owners, other than opening the street for public travel, doing work upon it to fit it for such use, and the like. It appears that an old military road, existing, as we understand the abstract, before the town was platted, was at this point changed from the old line so as to occupy the locality where the accident occurred. It has been so occupied for a great many years. The filling and macadamizing were almost wholly done by the property owners and the railway company. Little if any of the work was done by the city. But the city, by ordinance, required the adjacent land-owners to build sidewalks along the street at the locality in question. From the time of the occupation of the locality by the street it has been a part of a thoroughfare of the city, and traveled and used as all other streets of the city. Counsel for defendant insists that, as the city has not accepted the street in question by an ordinance duly passed, it cannot be regarded as a street which the city is under obligation to keep in repair. He bases this position upon a provision of the statute found in Code, § 527, in the following language: “No street or alley which shall hereafter be dedicated to public use by the proprietor of the ground in any city shall be deemed a public street or alley, or to be under the use or control of the city council, unless the dedication shall be accepted and confirmed by an ordinance especially passed for such purpose.” It is not, and cannot be, claimed that a dedication by opening the street, and preparing it for the use of the public as above shown, is not sufficient, if accepted by the city, to make the street a public highway, and bind the city to keep it in repair as other streets. We are to determine whether the omission to accept the street by ordinance relieves the city of all liability for neglect to keep it in a safe condition. The statute in question is clearly intended to protect cities from liability and responsibility thrown upon them by land-owners in dedicating streets to public use without giving the city an opportunity to determine whether such streets are demanded by the public good, and the wants of the citizens. In the absence of the statute, the city would be helpless to resist the designs of...