Jones v. City of Fort Dodge
| Decision Date | 11 March 1919 |
| Docket Number | 32687 |
| Citation | 171 N.W. 16,185 Iowa 600 |
| Parties | CHARLES H. JONES, Administrator, Appellant, v. CITY OF FORT DODGE et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--G. D. THOMPSON, Judge.
ACTION for damages for the wrongful death of plaintiff's decedent. At the close of the evidence, the trial court directed a verdict for the defendant. The plaintiff appeals.
Affirmed.
Healy & Thomas, for appellant.
Mitchell & Files, Healy & Faville, and Kenyon, Kelleher, Price & Hanson, for appellees.
On July 23, 1916, the decedent, Charles Jones, a boy seven years of age, was killed by collision with an automobile on Central Avenue in the city of Fort Dodge. While the boy was passing eastward along such avenue, he was run down unjustifiably by the driver of the automobile in question, and sustained injuries from which he immediately died. The driver of the automobile is not made a defendant herein. So far as appears from the record, he was never apprehended. The defendants named are the city of Fort Dodge, J. B. Butler, the owner of property abutting upon said street, and Zitterell, who was bound to Butler by contract, either as an employee or as a contractor. The alleged liability of these defendants is predicated by the plaintiff upon the fact that Butler was engaged, through Zitterell, in the repair of a building abutting upon the street, and for such purpose had cut off the sidewalk from travel, and had thereby driven the pedestrian travel into the street between the curb lines, and that this was an unlawful obstruction of the street, and created a nuisance, and that the defendant city was negligent in permitting it. The boy was walking in the street opposite the Butler front, at the time the automobile ran over him. The defendants filed separate answers, each denying liability. The defendant city denied the alleged negligence and further denied that the acts charged against it, even if wrongful, were a proximate cause of the accident.
To go into further detail, it appears that, in February, 1916, the Butler building had been partially destroyed by fire. Only its walls were left standing, and these were a menace to passing travel. The city authorities immediately stopped travel in that vicinity, by barricading the sidewalk and thereby withdrawing it from the use of the public. Central Avenue is an east and west paved street, and one of the main streets in the city. It is 75 feet wide, with 12-foot sidewalks on either side, leaving 51 feet as a traveling space for vehicles, from curb to curb. The street railway runs along its center line. In April, 1916, the property owner began to rebuild. For that purpose, he substituted for the barricade upon the sidewalk a complete housing, enclosed, and 8 or 10 feet high. The width of this housing was the full width of the sidewalk, and no more. It extended for 40 feet, being the frontal dimension of the Butler property. The street was otherwise free from obstruction, there being no material piled thereon, to obstruct the travel of vehicles. This left an unobstructed street 63 feet in width, including the sidewalk on the south side. Immediately preceding the accident, the boy, with his companion, was coming from the west, and was deflected into the street by the housing in question. At that time, there were no vehicles upon the street, except the automobile in question, and no pedestrians except the boy and his companion. There was a street car within a short distance. The automobile was coming from the east. The boy and the automobile were close to the curb at the time of the accident. It occurred at a point midway between the east and the west end of the housing in question. There is no suggestion in the record of any justification or excuse for the accident, so far as the automobile driver was concerned.
Considering first the alleged liability of the city, it is claimed by plaintiff that the housing which cut off the sidewalk travel was an unlawful obstruction of the street and a nuisance, and that the city negligently...
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