Lamb v. City of Cedar Rapids

• Decision Date: 25 May 1899
• Citation: 108 Iowa 629,79 N.W. 366
• Parties: LAMB v. CITY OF CEDAR RAPIDS.
• Court: Iowa Supreme Court

108 Iowa 629

79 N.W. 366

LAMB

v.CITY OF CEDAR RAPIDS.

Supreme Court of Iowa.

May 25, 1899.

Appeal from district court, Linn county; William G. Thompson, Judge.

Action at law to recover on account of personal injuries alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.Warren Harman, J. J. Powell, John N. Hughes, and Powell & Harman, for appellant.

Chas. A. Clark & Son, for appellee.

ROBINSON, C. J.

In March, 1895, the plaintiff, while assisting in the loading of a piano onto a dray in a street of the defendant, fell upon the stump of a small tree, and received severe injuries. He alleges that the accident occurred at a place where there was business property on each side of the street, and that it was the duty of the defendant to keep the street at that point in a safe condition for the transaction of business, and free from dangerous defects and obstructions of every character which might interfere with the use of the street; that the stump referred to constituted a defect and an obstruction in the street, and a source of danger, for which the defendant was responsible. The answer pleads contributory negligence on the part of the plaintiff, and avers that the stump was not in a part of the street worked and used for public travel, but in a part allowed by the defendant to the owners of adjoining property for use as a street park.

1. The appellant first complains of a refusal of the court to give an instruction, a copy of which is as follows: “First. The testimony shows without contradiction that some years prior to the alleged injury the city council of the city of Cedar Rapids, defendant in this action, had passed an ordinance granting property owners in said city owning lots abutting or lying along streets eighty feet wide the right to use twenty feet of the street next to their property for the purpose of parks or grass plats, and such property owners had the right to use that part of the street next to their lots for the purpose of beautifying the same in different ways, including the right to plant shade trees and make grass plats. It also appears that Third street west was eighty feet wide at the place of the alleged injury. Therefore the property owners on each side of the street where the alleged injury happened were entitled to occupy so much of the street as abutted on their respective lots; such occupation being limited to twenty feet from the lot line, leaving forty feet in the central portion of the street for vehicles and teams, and being further limited to the uses set forth in the ordinance which has been introduced in evidence. If you find that up to the time of the alleged injury the city authorities had never worked or improved the west twenty feet of Third street west between Eighth and Ninth avenues, but left that part of the street in its natural condition, then you will find for the defendant, unless you find that the city authorities had failed to provide a reasonably safe roadway of sufficient width to accommodate the public travel on that part of the street.” The first part of the instruction is sustained by the evidence, and the last part refers to the place of the accident, and the jury would have been authorized to find that the stump was within the part of the street which the defendant had authorized the owner of the adjoining property to use for the purpose of a street park, and which the defendant had not improved, and that a reasonably safe roadway of sufficient width had been provided in the street, but outside the space the use of which for a park had been authorized. Some of the evidence tended to show that the street had never been parked nor curbed at the place of the accident, although there was a shallow gutter at some distance from the lot line and sidewalk at about the place where the outer line of the parking, had it been constructed, would have been; that hitching posts had been placed within that line and near the sidewalk; that a small business house was located on an adjoining lot; and that the street at the place of the accident was traveled and used for all the ordinary purposes of a street. It may be conceded, for the purpose of this case, that the duty of the defendant to keep its streets in reasonably good condition, free from defects and obstructions dangerous to the public, extends only to so much of each street as is customarily used by the public. See Stafford v. City of Oskaloosa, 57 Iowa, 748, 11 N. W. 668;Fulliam v. City of Muscatine, 70 Iowa, 436, 30 N. W. 861; 9 Am. & Eng. Enc. Law, 385; Tied. Mun. Corp. § 346. But it is not true that a municipal corporation is not liable for the defects and obstructions in a street left in its natural condition which has been opened to public use. The corporation may be under as great obligation to remedy a defect or to remove an obstacle in one case as in the other. Hence, as the jury might have found from the evidence submitted, that the portion of the street in question had been opened to public travel, and that it was the duty of the defendant to keep it in a reasonably safe condition, the district court properly refused to give the instruction we have set out. The court charged the jury that if the defendant, having had sufficient notice of the alleged defect, in the exercise of reasonable care ought to have removed or remedied it, then the defendant did not discharge the duty which the law imposed upon it, and, as applied to the evidence, we think that was correct. See Stafford v. City of Oskaloosa, 64 Iowa, 251, 20 N. W. 174;Foshay v. Town of Glen Haven, 25 Wis. 288;North Manheim Tp. v. Arnold, 119 Pa. St. 381, 13 Atl. 444; 2 Dill. Mun. Corp. § 1008; Elliott, Roads & St. 447. Much of what we have said applies to the second and third instructions asked by the defendant and refused by the court. We do not think the court erred in not giving either of them. Some of the instructions asked by the defendant...