Heller v. Smith

• Decision Date: 23 June 1922
• Docket Number: No. 34346.,34346.
• Citation: 188 N.W. 878
• Parties: HELLER v. SMITH ET AL.
• Court: Iowa Supreme Court

188 N.W. 878

HELLER

v.SMITH ET AL.

No. 34346.

Supreme Court of Iowa.

June 23, 1922.

Appeal from District Court, Shelby County; J. B. Rockafellow, Judge.

Action at law to recover damages for personal injury. The facts are sufficiently stated in the opinion. There was a judgment for the defendants and plaintiff appeals. Reversed in part; affirmed in part.J. S. Whitney, of Storm Lake, and V. H. Byers, of Harlan, for appellant.

Shelby Cullison, of Harlan, for appellee Hammerand.

Edward S. White, of Harlan, for other appellees.

WEAVER, J.

The case as made by the plaintiff tends to show that on November 11, 1918, known in recent years as “Armistice Day,” the news of the suspension of hostilities in the great war in Europe having been made public, there was immediate general rejoicing, which found expression in impromptu gatherings of the people in the cities and towns of the country at which there was a general indulgence in the use of many noise-making devices which usually mark popular celebrations of great events. The town of Portsmouth was, in this respect, in line with other municipalities and centers of population. On the morning of that day and in preparation for the celebration, two members of the town council, Doyle and Olinger, went to the blacksmith shop of William Hammerand and asked him to help in the exercises of the day by “shooting anvils.” Hammerand said he had “sworn off” from such things, but would comply with the request. Something was said about the necessary powder, and Doyle and Olinger said they would get some. While Hammerand was getting the anvils out, the mayor, one Monahan, appeared on the scene, and, on being told what was proposed, said, “Yes, shoot,” and in reply to a question, “Where?” answered, “In the street,” and further said he would see about getting powder.

The method of shooting anvils is generally well understood. Two anvils were used, one was turned bottom upward in the street, exposing a hole in the solid mass of iron. The hole was then filled with powder and covered by the second anvil, placed over it, enough powder being scattered between them to serve as a lighting fuse, which was lighted for the explosion by the use of a long iron rod, heated at one end on the forge. In practical operation an iron ring was laid over the hole in the lower anvil, and this ring was also filled with powder before superimposing the top anvil. This was thought to add to the noise of the explosion. At some time after the firing was begun, the ring was lost or mislaid, and a wagon burr was substituted for it. The burr, as we assume, was made of cast iron. The first supply of powder having been exhausted, other powder of a different quality was procured; but Hammerand, whether because he distrusted the powder, or for some other reason not clearly shown, declined to continue the firing, and went some distance away to help in cleaning up an old cannon, which was being prepared for use on the occasion. After Hammerand left, the firing of the anvils was continued by the defendants Smith and Clark. The firing was being done in the street near the blacksmith shop, and many people were gathered in and about the place. The plaintiff, a 12-year old schoolboy, was among the spectators, though, as we understand it, not in close proximity to the anvils. Smith and Clark had been serving the anvils for a time, when the force of an explosion broke the cast iron burr into fragments, one of which struck and seriously injured the plaintiff, and this action is brought to recover the damages so sustained. Trial was had to a jury, and at the close of the testimony the court sustained a motion to direct a verdict in favor of the defendants town of Portsmouth and Hammerand. The cause as against the defendants Smith and Clark was then submitted to the jury, which returned a verdict in their favor. Judgment was entered accordingly and plaintiff appeals.

[1] I. Considering first the direction of a verdict in favor of Hammerand, we are disposed to hold there was no error in the ruling. It appears without dispute that, while this defendant did assist in serving and firing the anvils for a time, he had desisted therefrom, and was then engaged in other aid of the general celebration at another place, and had nothing to do with the firing which shattered the wagon burr by which plaintiff was injured, and we think that upon no tenable theory of the case could he be held liable for the damages.

[2] II. To hold the defendants Smith and Clark answerable for damages, it must appear that plaintiff's injury was caused or contributed to by some negligent act or omissionon their part. That question seems to have been fairly submitted to the jury, which found that the charge of negligence had not been sustained by the evidence. The evidence clearly does not make a case against these defendants upon which the court can say they were negligent as a matter of law, and the finding of the jury thereon must be accepted as final.

[3] III. Coming now to the question to what extent, if at all, the town may be held to responsibility for the misfortune of the plaintiff, we find some degree of confusion in the precedents. This is in part due to varying statutes of the different jurisdictions, and to the somewhat variable emphasis which the courts have placed upon the duty of the municipality to keep its streets free from conditions tending to imperil the general safety. In this state the statute expressly imposes upon cities and towns the duty to “keep their streets open and in repair and free from nuisances.” Code, § 753. It is the duty concerning which the court has had frequent occasion to speak. Rowell v. Williams, 29 Iowa, 210;Rusch v. Davenport, 6 Iowa, 443;Stanley v. Davenport, 54 Iowa, 463, 2 N. W. 1064, 6 N. W. 706, 37 Am. Rep. 216;Farrell v. Dubuque, 129 Iowa, 477, 105 N. W. 696;Wheeler v. Fort Dodge, 131 Iowa, 566, 108 N. W. 1057, 9 L. R. A. (N. S.) 146;Shinnick v. Marshalltown, 137 Iowa, 72, 114 N. W. 542. Generally speaking, it may be said that where the town either creates or permits a condition or obstruction of a street of such character as to be obviously dangerous to persons lawfully using the public way, it constitutes a nuisance per se, and the municipality is chargeable with liability in damages to those who are injured thereby without fault on their own part, and such liability is not avoided by plea or proof of care on part of the town. If, however, the condition or obstruction complained of is not obviously or inherently dangerous when properly guarded and cared for, it is not a nuisance per se, although if the evidence justifies the conclusion the jury may find it a nuisance in fact. Melker v. New York, 190 N. Y. 481, 83 N. E. 565, 16 L. R. A. (N. S.) 621, 13 Ann. Cas. 544.

Cases involving accidents and injuries from the use of streets for public meetings and celebrations are quite numerous, and, while no courts hold that such occasions absolve or release town authorities from their statutory or official obligations, there is a manifest tendency of the courts generally to hold that the time-honored custom of the people to...