Calder v. Smalley
| Decision Date | 02 June 1885 |
| Citation | 23 N.W. 638,66 Iowa 219 |
| Parties | CALDER v. SMALLEY |
| Court | Iowa Supreme Court |
Appeal from Muscatine District Court.
ACTION to recover for personal injuries sustained by plaintiff by falling into a scuttle-hole constructed by defendant in a side-walk of a street upon which a building owned by him was erected. A judgment was rendered upon a verdict for plaintiff. Defendant appeals.
AFFIRMED.
Brannan Jayne & Hoffman, and J. Carskaddan, for appellant.
Richman Burke & Russell, for appellee.
I. The petition alleges that defendant owns a certain house and lot situated upon Second street, in the city of Muscatine; that the cellar under the house extends into the street, under the side-walk, in which defendant made a scuttle-hole to be used for putting wood in the cellar; that the covering of the hole was negligently constructed, being laid down without fastenings, upon planks which were not nailed; that plaintiff, while passing upon the sidewalk over the cellar, without fault or negligence upon her part, stepped upon the covering of the scuttle-hole, which gave way, and she fell into the hole, and thereby received the injuries to recover for which she brings this suit.
The defendant, in his answer, denies the allegations of the petition, and, as a special defense, avers that, if plaintiff is entitled to recover upon the cause of action pleaded in the petition, the city of Muscatine, and not defendant, is liable therefor, inasmuch as it is the duty of the city, assumed by ordinance, which is set out in the answer, to construct and keep in repair all side-walks therein. A demurrer to the count of the answer pleading the special defense was sustained.
In an amended petition plaintiff alleges that defendant wrongfully, and without authority, made the covered excavation under the side-walk; and that the cover thereof was properly used by the public as a side-walk. A demurrer by defendant to this amendment was overruled. Evidence was introduced by each party tending to support his or her side of the several issues.
II. The first objection to the judgment discussed by defendant's counsel is based upon the position that, if plaintiff has any remedy for the injury she sustained, it should be pursued against the city, which is alone liable. Counsel, to support this objection, rely upon City of Keokuk v. Independent Dist. of Keokuk, 53 Iowa 352, 5 N.W. 503. In our opinion the distinction between that case and this is obvious. In that case the injury for which recovery was sought resulted from the dangerous and defective condition of the side-walk itself, the construction and repair of which the city, under authority assumed by ordinance, was empowered to require; in this the alleged injuries were caused, not by a defective side-walk, but by a defective scuttle and cover, which were constructed for the private use of defendant, either with or without the authority of the city. If constructed and maintained without authority of the city, the scuttle and cover constituted a nuisance, and defendant is liable for all injuries resulting therefrom. If constructed and maintained with such authority, defendant is liable, in the absence of the care in their construction and repair required by law. See Dill. Mun. Corp., §§ 699, 1032, 1034; Com. v. Boston, 97 Mass. 555; Congreve v. Morgan, 18 N.Y. 84; and cases cited in City of Keokuk v. Independent Dist. of Keokuk, 53 Iowa 352, 357, 5 N.W. 503.
It will be observed that the petition bases the claim for recovery both on the ground that the scuttle and cover were made and maintained without authority, and that they were negligently constructed. We need not enquire whether the city may be liable as well as defendant. It is sufficient for the purpose of this case to hold that defendant is liable for injuries received by plaintiff, caused by defective construction of the scuttle and cover, and that the rule of City of Keokuk v. Independent Dist. of Keokuk does not apply to the facts of this case.
It may be said, in reply to the argument of defendant's counsel upon this point, that the case is that of the unauthorized or negligent use of a side-walk, and that the cover of the scuttle cannot be regarded, as claimed by counsel, as only a part of the side-walk. The negligent or unauthorized use of a part of the side-walk as a cover for the scuttle rendered defendant liable for the injuries, just as he would have been liable in case he had, in a like manner, used, for his own private benefit, a part of the side-walk for any other purpose.
III. The district court instructed the jury, in substance, that defendant would not be liable as for a nuisance in constructing and maintaining the scuttle and cover, if the city consented thereto, which may be implied from use by the defendant, and acquiescence without objection by the city with knowledge on the part of its officers of the use of the side-walk for such purpose. Counsel for defendant insist that, as the evidence shows without conflict the use of the side-walk with the implied assent of the city, the case,...
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