Spiker v. City of Ottumwa

• Citation: 193 Iowa 844,186 N.W. 465
• Decision Date: 07 February 1922
• Docket Number: No. 34055.,34055.
• Parties: SPIKER v. CITY OF OTTUMWA.
• Court: United States State Supreme Court of Iowa

193 Iowa 844

186 N.W. 465

SPIKER

v.CITY OF OTTUMWA.

No. 34055.

Supreme Court of Iowa.

Feb. 7, 1922.

Appeal from District Court, Wapello County; Francis M. Hunter, Judge.

Action at law to recover damages for personal injury. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.Wm. A. Hunt, of Ottumwa, for appellant.

J. J. Smith, of Ottumwa, for appellee.

WEAVER, J.

The following facts are either admitted or have support in the evidence. Willard street, in the city of Ottumwa, extends north and south. It is a well-improved and much-frequented street, lined on either side by residence property. On the east side of Willard street was the residence of one Burnaugh. On or about November1, 1918, Burnaugh, desiring to make connection between his house and the water main in Willard street, applied to the proper city officer and obtained a permit authorizing him to open up the street for that purpose. The work was begun in the morning or forenoon of November 1, 1918. The trench so made extended westerly from the Burnaugh property across the course of the street to a point variously estimated at 7 to 15 feet from the west curb or margin of the traveled way. The work was done by Burnaugh or some other person in his employ. At about 4:30 p. m. the excavation appears to have been completed or suspended for the day, leaving the open trench unguarded except by such protection as was afforded by a short section of tile standing on end at the west end of the opening. No barrier of any kind was erected, and no warning light installed. Early in the evening, soon after 6 o'clock, the plaintiff left his place of business in a Ford automobile and, accompanied by a neighbor, drove in the direction of his home following his usual course along Willard street. The witnesses are not agreed as to the degree of darkness at that time, but there is testimony from which the jury could have found that there was no street light within the immediate vicinity, and that the night was sufficiently advanced to materially interfere with the view and prevent the driver's discovery of the excavation in his way in time to avoid the accident. According to plaintiff and his companion, he was driving his car at about 15 to 20 miles per hour, and had no knowledge or notice of the excavation in the street until upon the brink of it too late to avoid the plunge. The ditch was about 2 feet in width, and the car had sufficient momentum to carry it across the opening and turn it bottom upward. The accident resulted in serious injuries to the plaintiff. There is no evidence of notice to the city of the excavation in the street, except such as may be presumed or inferred from the granting of the permit to Burnaugh or from the open and evident character of the danger so created. At the close of the plaintiff's testimony defendant moved for a directed verdict in its favor because of the insufficiency of the evidence to justify a recovery against the city and because of the evident contributory negligence of the plaintiff. This motion was denied, and, being renewed after all the evidence was in, was again overruled. Later, defendant's motion for new trial was also overruled. As many of the assignments of error upon which a reversal is demanded are substantially duplications or repetitions, we shall not attempt to discuss them severally, but will as best we can group all the points made under the following general heads:

[1][2] I. It is argued with much earnestness that the court should have sustained defendant's motion for a directed verdict because there is no showing that the city was in any manner responsible for the excavation in the street or had any knowledge or notice of its dangerous condition in time to remedy it before the accident. Of the general rule of law on which this objection is bottomed there is no room for argument, and a city cannot be held liable on account of a defect not resulting from its own fault or failure of duty until it has notice, actual or constructive, of the danger and reasonable time in which to remedy it. Evans v. Council Bluffs, 187 Iowa, 369, 174 N. W. 238;Evans v. Des Moines, 169 Iowa, 321, 151 N. W. 397;Cohen v. New York, 204 N. Y. 424, 97 N. E. 866, 39 L. R. A. (N. S.) 985;Holmquist v. Construction Co., 169 Iowa, 502, 151 N. W. 828. With this statement and limitation of the rule, we face at once the vital inquiry in this case, having given Burnaugh a permit to enter upon and tear up the street for his private use and convenience, and of necessity to interfere with the public use of the street and (unless properly guarded) to create a menace to the safety of travelers lawfully using the public way, can the city escape liability for injuries caused by the negligence of the permit holder in making the excavation, for no better reason than the failure of plaintiff to prove that notice, actual or constructive, of the open and unguarded condition of the trench had been brought home to it before the injury occurred? That there are precedents which in greater or less degree lend support to such defense is to be admitted, and appellant's counsel has industriously collated and cited them for our consideration. We think, however, the proposition so urged is no longer an open question in this court. Without attempting a review of all our authorities, the following are sufficient to indicate that the objection based on want of notice to the city in cases of this character cannot prevail:

In Frohs v. Dubuque, 169 Iowa, 431, 150 N. W. 62, we had to deal with a somewhat similar case in which, while the city was there relieved of liability because it had in fact performed its duty in guarding the excavation, we had occasion to discuss the general rule of the city's responsibility and said:

“The city was by statute required to keep its streets in repair and free from nuisances, and though excavations therein for certain purposes, as in laying sewer pipe, are necessary and do not necessarily constitute a nuisance, it is incumbent on the city at all times to exercise ordinary care in guarding travelers against injury by barricading these or by lights warning them against the danger. This duty to take reasonable precaution as the nature of the case requires to safeguard travelers upon the street against injury from such excavations is none the less imperative where made by others as licensees or independent contractors or others by permission or under the direction of the city. * * * The duty cannot be delegatednor the responsibility evaded. * * * So that, whether private or public improvements are being made in the streets and under whatsoever arrangement, the obligation of the city to maintain its streets in a reasonably safe condition and to exercise reasonable diligence to guard and protect travelers thereon from receiving injury is continuous.”

See, also, Pace v. Webster City, 138 Iowa, 107, 115 N. W. 888;Prowell v. Waterloo, 144 Iowa, 689, 123 N. W. 346;Wheeler v. Fort Dodge, 131 Iowa, 575, 108 N. W. 1057, 9 L. R. A. (N. S.) 146.

All the purposes to be served by notice were forestalled or accomplished in the fact that the city, which is charged with the nondelegable duty to care for its streets and keep them free from nuisances, was notified in advance and gave express permission to Burnaugh to dig the trench which did the mischief. This is not only the rule of the great weight of authority, but is manifestly just and...