Parmenter v. City of Marion

• Decision Date: 07 February 1901
• Citation: Parmenter v. City of Marion, 113 Iowa 297, 85 N.W. 90 (Iowa 1901)
• Parties: PARMENTER v. CITY OF MARION.
• Court: Iowa Supreme Court

113 Iowa 297

85 N.W. 90

PARMENTER

v.CITY OF MARION.

Supreme Court of Iowa.

Feb. 7, 1901.

Appeal from superior court of Cedar Rapids; T. M. Giberson, Judge.

Action at law to recover damages for injuries received by plaintiff while passing along one of the streets of defendant city. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Reversed.C. J. Haas and Giffen & Voris, for appellant.

Rickel, Crocker & Christie, for appellee.

DEEMER, J.

This case involves the difficult and perplexing problem of proximate care. It appears that plaintiff, while passing along one of the streets of defendant city, was injured by being struck with a bale of hay that was thrown out of the second story of a building occupied by one John R. Rheinheimer. The building abuts on the street. In front of it is a sidewalk, the outer edge of which is 6 feet and 5 inches from the outside wall. Over the sidewalk, and projecting out from a level with the second floor, is a platform 15 feet in length and 5 feet wide. The bottom of this platform is 8 feet and 6 inches above the sidewalk. The sidewalk and street itself were free of obstructions, except as stated. Rheinheimer was dealing in baled hay and straw, and used the upper story of the building as a storeroom. On the day that plaintiff received her injuries, Rheinheimer went to the second floor of his building to procure a bale of hay. It was a cold winter day, and a strong wind was blowing from the northwest, towards the front of the building. Rheinheimer pulled the bale from its place, dragged it to the door opening onto the platform, opened the door, stepped to the edge of the platform, at the same time saying, “Look out below,” and, giving the bale a push with hand and knees, threw it over the platform. In its descent it struck plaintiff, who was walking on the sidewalk underneath the platform. The negligence charged is that defendant permitted the platform to be constructed and maintained in such a manner that objects falling therefrom were likely to fall upon and injure passers-by, and permitted the owner to use the same for the purpose of loading and unloading hay and straw into and from the building, to the danger of those using the sidewalk and street in front of the building, without taking any steps to remove or prevent the same.

The defendant's liability must be predicated on section 753 of the Code, as follows: “They shall have the care, supervision and control of all public highways and streets, * * * and shall cause the same to be kept open and in repair and free from nuisances.” But for this section, there would be no liability. It is a general rule that, in the absence of statute, no action lies against a quasi municipal corporation for breach of a corporate duty. In this state it is held that the duty of keeping streets in repair and free from nuisance is not discretionary, and that a city is liable for damages resulting from an injury caused by failure to observe the mandate of the law. Collins v. City of Council Bluffs, 32 Iowa, 324;Rowell v. Williams, 29 Iowa, 210. What, then, was the duty of the city? Manifestly, to keep its streets in repair, free from nuisance, and in a reasonably safe condition for public travel. The platform built out from the second story of the building in no way impeded public travel. In itself, it was not a menace to persons using the street. There was no danger of its falling on the public, in any way injuring it. Had it been used as a place for storing bales of hay that were liable to fall off and injure the public, by reason of its being narrower than the sidewalk below, and this condition were known to the city, or ought to have been known in the exercise of reasonable care and diligence, there would have been a liability on the part of the city. But that is not the case before us. Here the plaintiff was injured by reason of the carelessness and negligence of Rheinheimer in throwing the bale of hay from the second story to the sidewalk. The accident was just as likely to happen in the absence of a platform as with it. The platform, in itself, was not a nuisance or an obstruction to travel; and no one had reason to suppose that the owner of the building would push bales of hay out to the edge thereof, and allow them to drop on passers-by. They could as well anticipate that the owner of any building with more than one story is likely to carelessly throw objects out of the doors and windows thereof, and injure passers-by. Had the platform itself been a nuisance to persons using the street, it may be that the mere fact that Rheinheimer's negligence concurred with that of the city in producing the wrong would be no defense; for it is well settled that the mere fact that some other cause operates with the negligence of the defendant to produce the injury complained of does not relieve the defendant of liability. His original wrong, concurring with some other cause, and both operating proximately at the same time in producing the injury, makes him liable, whether that other cause was one for which the defendant was responsible or not. Gould v. Schermer, 101 Iowa, 582, 70 N. W. 697, and cases cited. But, before this rule will apply, it must be found that the defendant was itself negligent, and that but for its negligence the accident would not have happened. Negligence is not a proximate cause, unless it be found that the injury would not have happened but for that negligence. Campbell v. City of Stillwater, 32 Minn. 308, 20 N. W. 320. There was no negligence in allowing the platform to remain in the condition in which it was constructed. Danger could only be apprehended from the improper use thereof, and, unless the defendant had or ought to have had notice of this use, it was guilty of no negligence. An accident is distinguishable from a case of negligence in this: that the former is an unusual result,--one which reasonable and careful human foresight could not have apprehended, and which, under the circumstances, such care and foresight could not have guarded against. Handelun v. Railway Co., 72 Iowa, 709, 32 N. W. 4;Crowley v. Railroad Co., 65 Iowa, 658, 20 N. W. 467, 22 N. W. 918. Defendant was not bound to anticipate the negligent act of a third party, and it seems clear to us that there was no negligence in simply permitting the platform to remain in the condition it was in. What, then, was the act that caused the injury? Manifestly, the negligent act of Rheinheimer in throwing the bale of hay to the sidewalk, along which people had the right to pass, without looking to see if any one was coming who might be struck by the descending hay. The platform was a condition, and not a cause of the accident. If it had been wider, perhaps, the injury would not have happened; but, in the condition it was in, it was not of itself dangerous. In all the cases relied on by appellee, the defendant was negligent, and his negligence concurred in producing the injury. The mere fact that Rheinheimer used the platform for loading and unloading hay would not make it dangerous. Nor would the fact that he had theretofore thrown bundles from this platform into the street give the city notice that he was likely at some time to push one off the edge of the platform that would be carried by the wind back onto a passer-by. Properly used, the platform was not a menace to any one. The evidence tends to show that, while Rheinheimer sometimes threw baled hay from the platform into the street, he never but once before so threw it that it landed on the sidewalk. True, he frequently used it in loading and unloading wagons, which in itself was not dangerous, and, no doubt, could not be prohibited by the city; but he rarely threw bales down onto the street, and but once so threw them as to strike on the sidewalk. With proper care on his part, there was no danger to passers-by; and the city, in the absence of notice to the contrary, had the right to assume that he would use that degree of care. Such notice as it had of the use was not sufficient to charge it with knowledge that he was making a nuisance of the place, and was likely to injure passersby.

But, if we assume that the city was negligent in allowing the platform to remain in the manner shown, it by no means follows that it is liable to the plaintiff. It must also appear that this negligence contributed proximately to produce the injury. The general rule as to concurring causes has already been stated, and it appears therefrom that, to hold defendant responsible, it must appear that his negligence was one of the direct and proximate causes of the injury. Judge Cooley states, in his work on Torts, the rule of proximate cause very clearly, and we embody his statement found on pages 76 and 77 as the doctrine of this opinion. He says: “If an injury has resulted in consequence of a certain act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was the more remote.”...