McGrath Bldg. Co. v. City of Bettendorf

• Decision Date: 15 October 1957
• Docket Number: No. 49317,49317
• Citation: 85 N.W.2d 616,248 Iowa 1386,68 A.L.R.2d 1429
• Parties: , 68 A.L.R.2d 1429 McGRATH BUILDING COMPANY, Inc., a corporation, Plaintiff-Appellee, v. The CITY OF BETTENDORF, Iowa, Defendant, Cross-Petitioner and Appellant, E. J. Pierce, Jr., doing business as Acme Construction Company, Davenport Water Company, Inc., a Delaware corporation, and Iowa-Illinois Gas and Electric Company, an Illinois corporations, Cross-Defendants and Appellees.
• Court: Iowa Supreme Court

Page 616

85 N.W.2d 616

248 Iowa 1386, 68 A.L.R.2d 1429

McGRATH BUILDING COMPANY, Inc., a corporation, Plaintiff-Appellee, v. The CITY OF BETTENDORF, Iowa, Defendant, Cross-Petitioner and Appellant E. J. Pierce, Jr., doing business as Acme Construction Company, Davenport Water Company, Inc., a Delaware corporation, and Iowa-Illinois Gas and Electric Company, an Illinois corporations, Cross-Defendants and Appellees.

No. 49317.

Supreme Court of Iowa.

Oct. 15, 1957.

McDonald & McCracken, Davenport, and Albert J. Stafne, Jr., Bettendorf, for appellant.

Betty, Neuman, Heninger, Van Der Kamp & McMahon, Davenport, for plaintiff-appellee.

Lambach, Kopf, Stevenson & Christiansen, Davenport, for cross-defendants and appellees E. J. Pierce, Jr., d/b/a Acme Const. Co. and Davenport Water Co. Inc., a Delaware corporation.

Lane & Waterman, Davenport, for cross-defendant and appellee Iowa-Illinois Gas & Electric Co., an Illinois corporation.

THOMPSON, Justice.

This case comes to us upon an appeal from an order before final judgment, leave to appeal having been granted. It concerns rulings of the trial court which struck from defendant's answer three affirmative defenses, and so we have before us only the pleadings of the respective parties, with the court's orders upon the plaintiff's motions to strike.

The case as made by plaintiff's petition is that on October 18, 1956, the plaintiff was the owner of two dwelling houses located on Custer Terrace, an unpaved street in the defendant city. Several months prior to the date named, the Iowa-Illinois Gas & Electric Company, the holder of a franchise for furnishing natural gas in Bettendorf, had installed a main or pipeline in the street in front of plaintiff's houses, with a service line extending into the house known as 105 Custer Terrace and connecting with a meter in the basement. On the date in question, the city, through its employees, was operating a road grader in the street in front of plaintiff's houses, for the purpose of deepening a ditch along the north side of the street and grading it. It is alleged that the gas main in the street was only five inches under ground, and was struck by defendant's grader several times, causing the service line to be disconnected from the meter. This permitted gas to escape into the basement of 105 Custer Terrace; it became ignited and an explosion resulted which entirely demolished that house and severely damaged plaintiff's adjoining house, 109 Custer Terrace. Negligence of the defendant city is alleged in various ways, and damages are asked. We are concerned only with three defenses pleaded by the city, designated as affirmative defenses four, six, and seven, each of which was upon motion of the plaintiff stricken by the trial court. It might be plausibly urged that the defendant has not been injured by these rulings and so has nothing to complain of here, since the substance of these affirmative defenses seems to have been pleaded by the defendant city in the purely defensive parts of its answer, and these are still available to it. However, the question has not been raised and the parties have argued what they consider the substantial merits of the case. We accept their views, and will determine the questions as argued. The defendant city has brought in the Iowa-Illinois Gas & Electric Company as a defendant to cross-petition, and the utility has made here common cause with the plaintiff in upholding the rulings of the trial court, by filing a supporting brief and argument.

I. The plaintiff charges defendant with ten specifications of negligence. Some of these assert the failure of the defendant city to maintain its street in a reasonably safe condition and free from nuisance; others are based, we think upon negligences of the city's servants or agents in failing to take proper precautions to avoid the accident and injuries by having the gas turned off before grading, by failing to maintain a proper lookout, by failing to cease grading operations when its grader struck the gas line the first time, and by failing to warn the plaintiff of its impending operations. Negligence is a broad term; but in general it consists in doing something which the ordinarily prudent person would not have done, or in failing to do something which such person would have done. Many of the plaintiff's specifications come in the category of failures of the defendant's employee to do things which should have been done, and so are allegations of negligence on their part in carrying out their duties; but other specifications we think charge failure to keep the streets safe and free from nuisance. The distinction is important.

The first affirmative defense which was stricken, Number Four, alleged that the franchise granted the Iowa-Illinois Gas & Electric Company and under which it was operating created no right or duty in or upon the city to grant permits for or to supervise the installations made by the company, there have been no ordinances enacted for the same purpose, there is no duty upon the city to embody such terms in the franchise or to enact regulatory ordinances, and in the absence thereof it had no duty to regulate, supervise or inspect the mains or their manner of installation. One of the grounds of the motion to strike, which the trial court granted generally, was that the allegations are immaterial. The ruling was proper upon this ground.

The city's duty to keep its streets in a reasonably safe condition and free from nuisance does not depend upon any agreement permitting it to inspect installations above, upon, or below their surface. It is pleaded in plaintiff's petition that the city had knowledge or in the exercise of reasonable care should have had knowledge of the shallow location of the gas main; and the case is before us upon the pleadings. We have recently in two cases held that cities and towns owe a duty to exercise reasonable care in keeping their public thoroughfares safe and free from nuisance. Hall v. Town of Keota, Iowa, 79 N.W.2d 784; Florey v. City of Burlington, 247 Iowa 316, 73 N.W.2d 770. The latter case concerned a public park, but the principle set forth applies as well to streets. It is not contended here that the installation of a gas main only five inches under the surface of an ungraded street would not be dangerous and might not be found to show a failure of the city to keep the street in a reasonably safe condition, or to show a nuisance. The question is discussed at length in the two cases cited last above, and we shall not review it again.

It is true that in the Keota case we held that an iron pole which supported a traffic sign was not a nuisance upon the street, even though its maintenance in a defective condition might be negligence. But we said that uses of the streets for purposes other than their primary object of travel might be nuisances, citing Wheeler v. City of Fort Dodge, 131 Iowa 566, 108 N.W. 1057, 9 L.R.A.,N.S., 146. We think the situation here is such that finding of nuisance might be made under the allegations of plaintiff's petition.

Cases which uphold the liability of a municipality upon quite similar facts are Beall v. City of Seattle, 28 Wash. 593, 69 P. 12, 16, 61 L.R.A. 583 ('Appellant was injured by an unseen instrument exploding within the area of the street over which the city had control. We think, when he had shown those facts, that a prima facie case of negligence was established * * *'); Lawrence v. City of Scranton, 284 Pa. 215, 130 A. 428, 41 A.L.R. 454 (a leak in a gas main); Splinter v. City of Nampa, 70 Idaho 287, 215 P.2d 999, 17 A.L.R.2d 665 (gas escaping from a tank installed in an alley and causing damage in an adjacent building). The city may not escape liability for unsafe uses, or negligences, created in or above or under the public streets by the plea that it had permitted some one else to make installations and had no right to regulate or inspect them. Its liability, if liability it has, arises from its failure to keep its streets reasonably safe, and free from nuisance, rather than from a failure to regulate or inspect the installations of the...