Smith v. City of Algona

• Decision Date: 29 September 1942
• Docket Number: 45858.
• Citation: 5 N.W.2d 625,232 Iowa 362
• Parties: SMITH v. CITY OF ALGONA.
• Court: Iowa Supreme Court

5 N.W.2d 625

232 Iowa 362

SMITH v. CITY OF ALGONA.

No. 45858.

Supreme Court of Iowa

September 29, 1942

James I. Dolliver and D. M. Kelleher, both of Fort Dodge, for appellant.

J D. Lowe, of Algona, for appellee.

BLISS Justice.

The injury to the plaintiff occurred on July 3, 1939, on Park Avenue, near the north limits of the defendant, a city having a population of about 4,000 people. Primary highway 169, which is a part of the road system of Iowa over which the State Highway Commission has complete supervision and control, is routed through Algona over four of its paved streets, one of which is Park Avenue, for a total distance of 7,575 feet. The highway enters the city from the south on Phillips Street which it traverses northward for 3,300 feet, thence west on State Street, the main business street of the defendant, for 1,600 feet, thence north on Jones Street for 900 feet to where the latter street merges into and becomes Park Avenue thence due north on Park Avenue for 525 feet and 1,250 feet northwesterly thereon to the north city limits. This last 1,250 feet of Park Avenue is downgrade and through a pass under the C. M. & St. P. R. R. tracks. The plaintiff and her husband were coming into the city from the north on highway 169. The street, after it passes through the subway under the railroad tracks, turns rather sharply to the southeast up the hill. Immediately to the right of this paved turn, in the shoulder of the street was a deep rut, into which the right wheels passed and caused the car to veer into the pole. The paving on Park Avenue along where the injury occurred and on up the hill was eighteen feet wide. Farther to the south, it was twenty-four feet wide, and at other places along the route of highway 169 through the city the paving was thirty feet wide.

Highway 169 is paved both north and south of the city with a concrete slab 18 feet wide. All of the streets traversed by 169 were graded and paved by the defendant in 1922, and, so far as the record shows, they were always thereafter maintained by the city until the year 1939. On November 15, 1938, the city council of Algona adopted the following resolution:

"Be It Resolved by the City Council of the City of Algona, Iowa.

"1. That pursuant to the provisions of Section 4755-b29 of the Code (1935) and, Chapter 154 of the Laws of the 47th General Assembly of the State of Iowa, we hereby approve and consent to the maintenance of all primary road extensions within said City during the calendar year 1939, by the State Highway Commission, as hereinafter set forth.

"2. That the approval and consent herein given for the maintenance of said primary road extension within the said City of Algona is based on the assumption and understanding that said maintenance to be done by the State Highway Commission will be paid for by it out of the primary road fund, and that no charge will be made against the City of Algona on account of such maintenance performed or to be performed by the State Highway Commission on the said primary road extensions within the said City of Algona.

"3. That the maintenance to be done by the Commission on the primary road extensions within the City of Algona shall include the usual surface maintenance roadbed repairs, repairs to bridges, culverts and guardrail, and other maintenance usually performed on primary roads outside of cities and towns. That on streets or portions of streets which are curbed, the maintenance, except snow removal, shall extend from curb to curb. That the maintenance of such primary road extensions shall include plowing the snow from the full width of the pavement or other surfacing, providing that if the pavement or other surfacing is more than thirty feet in width, then the Highway Commission will plow the snow from a traveled way only about thirty feet in width.

"4. That the maintenance of such primary road extensions by the Highway Commission shall not include: (a) The loading and hauling away of snow which is placed off to the side of the traveled portion of the roadway. (b) The sprinkling of the streets. (c) The sweeping of the streets. (d) The maintenance or repair of any sewers, water pipes or other services under the traveled surface of the roadway or any costs incident thereto.

"5. That this resolution and the terms thereof shall become effective upon the approval and acceptance thereof by the Iowa State Highway Commission."

The chairman of the Commission attached to the resolution the statement that it was approved and accepted by the Commission on November 22, 1938.

The standard highway signs along the course of 169 through the city were furnished and placed by the Commission prior to 1939. During 1939, prior to the date of the injury sustained by plaintiff, a broken portion of pavement along the route other than Park Avenue was repaired, and during freezing weather some of the slopes and approaches to intersections were sanded. There is no evidence that any other maintenance work was done on the streets over which 169 was routed during the year 1939.

The repair of the broken pavement above mentioned was in Call Street which intersects the extension of 169 at a place where the houses average much less than 200 feet apart, and where under the second paragraph of Code section 4755.27, the Commission had no right to make direct repairs, and could only reimburse the defendant for maintenance work which it had done. We have not checked the figures of appellant in her printed argument, but appellee does not question them, that from the intersection of State and Jones Streets, north to the north city limits, a distance of 2,675 feet, there are 45 abutting houses and business houses, and for the whole course of 169 through the city (7,575 feet) the number of such buildings is 119, making an average distance between them in each instance of about 60 feet.

Highway 169 was simply a renumbering of Highway 16 which was made a part of the primary road system in April, 1919, with the route through the city remaining the same.

Section 4755-b29 of the 1935 Code, and Chapter 154 of the Laws of the 47th General Assembly, pursuant to which the resolution of the city council was adopted, are, respectively, now section 4755.27, and section 4755.21 of the Code of 1939, and we will hereinafter refer to the sections by the latter designations.

Section 4755.21 is as follows:

"Improvements in cities and towns. The state highway commission is hereby given authority, subject to the approval of the council, to construct, reconstruct, improve and maintain extensions of the primary road system within any city or town, including cities under special charter, provided that such improvement shall not exceed in width that of the primary road system and the amount of funds expended in any one year shall not exceed twenty-five percent of the primary road construction fund.

"The phrase 'subject to approval of the council', as it appears in this section, shall be construed as authorizing the council to consider said proposed improvements in its relationship to municipal improvements (such as sewers, water lines, sidewalks and other public improvements, and the establishment or re-establishment of street grades). The location of said primary road extensions shall be determined by the state highway commission. (C. 24, § 4731; C. 27, 31, 35, § 4755-b 26; 47 G.A. ch. 154, § 1.)"

Section 4755.27 is:

"Maintenance. Primary roads outside of cities and towns and along the corporate lines of cities and towns shall be maintained by the state highway commission under the patrol system, and the cost of said work paid from the primary road fund. Extensions of primary roads within any town or within any city having a population less than twenty-five hundred, or within that part of any city, including cities under special charter, where the houses or business houses average not less than two hundred feet apart, may be maintained by the state highway commission and the cost thereof paid out of the primary road fund. [ Our italics.]

"On extensions of primary roads within that part of any city having a population over twenty-five hundred, including cities under special charter, where the houses or business houses average less than two hundred feet apart, the state highway commission may make payment to the city from the primary road fund for maintenance work performed after this chapter becomes effective, in no event exceeding an average of three hundred fifty dollars per year per mile of such primary road extension. (C. 24, § 4736; C. 27, 31, § 4755-b29.)"

The italicized part of the section just quoted is the only part thereof which can have any application to this case.

Plaintiff by her amended petition alleged: Where and how the injury was caused, and the extent and nature of those injuries; that along the right hand side of the pavement, just south of the railroad underpass, there was a rut, next to the pavement, six inches deep and seventy-five feet long, which had been washed out by rains and water and the wheels of cars; that defendant had negligently constructed the pavement with an abrupt jog to the left as you go south, and had negligently permitted the rut to be and remain there, and caused the car in which plaintiff was riding to swerve from the rut against a pole carrying electric wires.

The questions for determination center about Division II of the defendant's second substituted answer, as amended. The facts are set out in the pleadings but are to be taken in the light of a stipulation of facts. The issues before us are issues of law arising upon a motion of the plaintiff to strike, directed at said Division II. This division is intended as a separate and complete defense to plaintiff's cause of action. It...