City of Winona v. Botzet

• Citation: 169 F. 321
• Decision Date: 26 March 1909
• Docket Number: 2,840,2,841.
• Parties: CITY OF WINONA v. BOTZET. SAME v. NICHOLS.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

169 F. 321

CITY OF WINONA v. BOTZET.

SAME v. NICHOLS.

Nos. 2,840, 2,841.

United States Court of Appeals, Eighth Circuit.

March 26, 1909

(Syllabus by the Court.)

The city of Winona maintained a shrill, startling steam whistle on its waterworks building within 110 feet of its bridge across the Mississippi river, which was 40 feet in height at that point. This whistle was connected with its fire-alarm system, so that it gave notice automatically by its blasts of fires and their location when an alarm was sent in. The city directed the engineer of its waterworks to blow this whistle daily by hand at 5 p.m. to give notice to union men and its employes of the end of their day's work. There was substantial evidence that the blasts from this whistle had frightened horses traveling on the bridge for years before this accident. As Nichols was driving his horses over the bridge at a point about 110 feet from the whistle at 5 p.m the assistant engineer of the waterworks blew a blast of the whistle which frightened his horses, caused them to run away to throw him and a girl who was riding with him to the ground below, and to kill him and injure her.

Held (1) The whistle was not blown in the exercise of the city's power to protect itself and its inhabitants against fires, but in the exercise of its power to maintain waterworks and to care for its own property.

(2) There was substantial evidence that it failed to discharge its duty to so use its property as to do no unnecessary damage to others, and its duty to use reasonable care to keep its bridge reasonably safe for travelers.

In an action for damages caused by frightening horses on a highway by the blast of a whistle, evidence that tractable and gentle horses had been frightened previously by blasts of the same whistle under similar circumstances was competent.

It is only when the material facts and the rational inferences from them are so clearly established that but one finding would be sustained by the court that the question of the negligence of the defendant is for the court. Evidence considered, and held sufficient for the consideration of the jury.

The proximate cause of an injury is the primary moving cause without which it would not have been inflicted, and which in the natural and probable sequence of events, without the intervention of any new and independent cause, produces the injury.

The intervening cause which will relieve of liability for an injury is an independent cause which intervenes between the original wrongful act or omission and the injury, turns aside the natural sequence of events, and produces a result which would not otherwise have followed and which could not have been reasonably anticipated.

The blast of a whistle frightened horses on a bridge, they ran the tugs came unhooked, the tongue slipped from the yoke, fell to the bridge and broke, the wagon box crashed against the railing, threw the occupants over it to the ground, and injured them.

Held: The blast of the whistle was the proximate cause of the injuries, and the subsequent events preceding the injuries were dependent upon and caused by it.

Notice or knowledge and appreciation of the danger are indispensable to an assumption of the risk of it.

The burden of proof to establish the contributory negligence of the plaintiff is upon the defendant.

It is only when the evidence of it is so clear that the court would not sustain a finding to the contrary that it is the duty of the court to instruct the jury that the plaintiff was guilty of it. Evidence considered, and held for jury.

The negligence of the driver of a vehicle may not be imputed to a passenger who is riding with him without charge or compensation.

The duty of a city to exercise reasonable care to keep its bridge or street reasonably safe for travelers is not limited to acts of commission and omission within the limits of the bridge or street, but extends to those outside the bridge or street that render it unsafe for travelers.

The duty to so use its own property as to do no unnecessary injury to others extends to effects produced by the use beyond the limits of its property.

Damages sustained by injuries to persons as well as to property are recoverable for a breach of these duties.

Where the use and enjoyment of a legislative grant does not necessarily and naturally create a nuisance, but the nuisance results from the method of the use and enjoyment, the grant is no defense to an action on account of the creation or continuance of the nuisance or its effects.

Municipalities have two classes of powers, the one political, public, in the exercise of which they govern their people and act as delegates of the state, the other private, business, in the exercise of which they act for the advantage of their inhabitants and themselves.

They are not liable for damages for the acts and omissions of their officers and agents in the exercise of the former. But they are liable for damages for the wrongful and negligent acts and omissions of their officers and agents within the scope of their authority in the exercise of the latter.

The municipal power to construct, maintain, and operate waterworks is a private or business power, and a city is liable for damages caused by the wrongful or negligent acts and omissions of its officers and agents in the exercise of that power to the same extent as a private corporation or individual.

At 5 o'clock in the afternoon of a cold blustering day in January, 1907, the assistant of the engineer of the waterworks of the city of Winona blew a steam whistle on the waterworks building for the purpose of notifying union men and city employes that their workday was over, and thereby scared a team of horses which James N. Nichols was driving about 110 feet distant from the whistle over the city's bridge across the Mississippi river, so that they ran away, threw him and Irene Botzet, a schoolgirl 13 years old who was riding with him, over the railing of the bridge to the frozen ground 40 feet below, killed him, and seriously injured her. Mary Alice Nichols, the administratrix of his estate, brought an action against the city for alleged negligence in causing the death of Mr. Nichols in this way. August Botzet, the father of Irene, brought an action against the city for alleged negligence in causing the injuries to her. The two causes were tried together, and resulted in judgments for the plaintiffs, of which the city complains.

For more than 20 years the city of Winona has maintained waterworks, and as a part thereof a building in which the pumping engines are located and operated. It has also maintained an organized fire department under legislative authority. In 1888, under this authority, it installed an electric fire alarm system, and as a part of it a 12-inch fire whistle, which it placed on the roof of the waterworks building, and which automatically notified the members of the fire department and others by its blasts in what part of the city a fire was whenever an alarm was sent in from any one of some 60 fire alarm boxes scattered throughout the city. This whistle, including the fire alarm system, was tested three times a day, so that it gave forth many blasts, sometimes about 100 in a day. After this whistle and fire-alarm system had been established, and in 1891, the city of Winona, under authority conferred upon it by the Legislatures of Minnesota and Wisconsin, constructed and has maintained ever since a toll bridge across the Mississippi river for the use of pedestrians, teams, and carriages. It constructed this bridge in such a way that the driveway of the approach to it upon the Minnesota side started on an easy ascent at the intersection of Second and Main streets in Winona, ran north on Main street about 400 feet, then turned and ran west one block of 300 feet to Johnson street, where it was at least 45 feet above the ground. At that point the driveway turned and ran east across the river about 300 feet to a point where it connected with a pile bridge and a road leading across the Wisconsin bottoms. Where the roadway turned east on the Minnesota side it was not more than 110 feet distant from the steam whistle on the waterworks building, which was in a plane not more than 15 feet below it. The roadway of the bridge was provided with a sidewalk on one side of it 6 feet in width, a driveway for carriages 18 feet in width, and substantial wooden railings 4 feet 2 inches in height.

In May, 1905, the city council of Winona, on a petition of the trades and labor council, adopted a recommendation of its fire committee that this fire whistle should be blown at 5 in the afternoon to notify mechanics and others when their workday ceased. Thereupon the water commissioner directed the engineer of the waterworks to blow this whistle at that hour each day, and he did so by means of a cord attached to the valve from that time until the injuries were inflicted which resulted in these actions.

By chapter 165, p. 238 of the General Laws of Minnesota, 1903, the management of the waterworks was transferred on May 1, 1906, to the board of municipal works of the city of Winona; but that board gave no directions concerning the blowing of this whistle, and the engineer who continued in charge of the waterworks building continued to blow the whistle as before.

The blast of this whistle was produced by a steam pressure of about 100 pounds to the square inch, and it sent forth a shrill, startling sound which could be heard 5 miles, and much farther under favorable conditions. In the discharge of its function as a fire whistle it was blown automatically by the action of the fire-alarm system. But in the discharge of its function as a time whistle it was blown by hand by the engineer of...