Stanley v. City of Davenport

• Decision Date: 27 October 1879
• Parties: SARAH W. STANLEY, APPELLANT, v. THE CITY OF DAVENPORT, APPELLEE.
• Court: Iowa Supreme Court

54 Iowa 463

2 N.W. 1064

SARAH W. STANLEY, APPELLANT,

v.THE CITY OF DAVENPORT, APPELLEE.

Supreme Court of Iowa.

Filed October 27, 1879.

Appeal from Scott circuit court.

The petition states that the plaintiff, while driving a horse harnessed to a wagon along and upon a street in the city, and without fault or negligence on her part, was violently thrown from the wagon by reason of the horse taking fright at a steam motor there being used on said street under the authority and permission of the defendant. It is alleged the plaintiff was greatly injured, and a recovery therefor is sought. There were two counts in the petition. To the first there was a demurrer, which was sustained, and the plaintiff excepted; and, refusing to plead further, judgment was rendered against her. It was stipulated by counsel, when the demurrer was submitted, that it presented for determination the following question: “Whether or not it was negligence on the part of the defendant to permit the use of a steam motor on Brady street, under the written authority set out in said petition, and allowing it to remain and be used thereon.” The written authority referred to is a resolution of the city council granting permission to use the motor on Brady street for thirty days. The second count set out a cause of action based on the use of the motor substantially as the same was stated in the first count. There were also other acts of negligence alleged in the second count, because of which the plaintiff claimed to recover. The defendant filed a motion to strike out of the second count all the allegations relating to the motor. The motion was sustained and the plaintiff excepted, but no judgment was rendered dismissing the action. The plaintiff appeals, and assigns as error the action of the court in sustaining the motion and demurrer.A. J. Hirschl, for appellant.

H. M. Martin, for appellee.

SEEVERS, J.

1. The appellee insists, because no judgment was rendered on the motion other than merely sustaining it and striking out the allegations objected to, that the appeal must be dismissed. It is conceded an appeal lies from the ruling on the demurrer, but it is stated and admitted in the abstract the cause is pending and for trial in the court below on the remaining cause of action in the second count.

The argument, briefly stated, is that an action cannot be pending in this court and the court below at the same time. While here the cause may be tried below and a recovery had. If so, the prosecution of the appeal would be unnecessary; and that a cause cannot be tried by piecemeal--a part before and another part after the appeal--has been determined. Appeals to this court are regulated by statute. By reference thereto the questions presented can be readily solved. It is provided that an “appeal may be taken to the supreme court from an intermediate order involving the merits and materially affecting the final decision. Code, § 3164. The motion involved the merits, and when it was sustained the final decisionwas virtually effected; for, as the pleadings now stand in the court below, the plaintiff cannot introduce any evidence in relation te the steam motor, nor can the right of the defendant to authorize its use be controverted in this action. By sustaining the motion the circuit court has stricken all allegations upon which such question can be based from the pleadings. By the express words of the statute an appeal lies in such case. By what authority can an appeal properly taken be dismissed? None other, we think, than statutory authority. Counsel have not called our attention to such a statute, and we know of none. If the remaining cause of action had been tried, it is possible, whatever might have been its result, it would be deemed a waiver of the appeal if brought to the attention of this court at the proper time. Code, § 3212. It is probable, also, that the court below would have the power to postpone a trial there until the appeal was disposed of. There is nothing in the record which tends to show the plaintiff has done anything since the appeal was taken which amounts to a waiver, or will authorize a dismissal of the appeal. In fact, the record fails to show that an issue has been found, or that either party desires a trial below until this appeal is determined.

2. In 1870 the defendant granted to the Davenport Central Railroad Company “the exclusive right to lay and operate upon * * Brady * * street, in said city, a single horse railway, with the necessary side tracks.” The right of the city to make this grant is not questioned.

In 1878 the city granted “I. M. Davies permission to run one of Baldwin's noiseless steam motors on Brady street hill, on probation for thirty days.” The motor was run and operated on the track of the street railway company. It has been held that cities have the authority to grant railway companies, who use steam in operating their roads, the right to occupy with their tracks a street or streets of the city. Milburn v. Cedar Rapids, 12 Iowa, 246, and numerous other cases. These decisions were based on a statute providing that “any [[[railway] corporation may raise or lower any turnpike, plank-road, or other highway for the purpose of having its railway pass over or under the same, and in such cases said corporation shall put such highway, as soon as may be, in as good repair and condition as before such alteration.” Code, § 1262. In the Milburn case the words “pass over,” were construed to mean “upon” or lengthwise, and this construction has been several times followed in subsequent cases. As thus construed the legislative assent had been given to the laying down of railway tracks in streets, and the operation of the same by the use of steam, subject, however, to proper equitable control and police regulations. Newton & S. W. R. Co. v. The Mayor, etc., 36 Iowa, 299. But it never has been held that cities had the authority to grant such privileges, in the absence of a legislative grant to that effect. Whatever may have been said by judges who have written opinions in the cases in which this question has been determined or discussed, it is quite apparent, we think, that all the cases subsequent thereto are based on the Milburn case, which, as we understand, is based on the statute. It is worthy of note that, notwithstanding the several decisions following the Milburn case, it has not been deemed satisfactory to the profession or general public. This is apparent from the numerous cases in which the doctrine of the Milburn case has been vigorously assailed by counsel. Finally, in 1874, the General Assembly enacted a substitute for Code, § 1262, which provides that railway corporations may “cross over or under” any highway with its railway. Chapter 47, Laws of Fifteenth General Assembly. To cross over or under does not mean upon or lengthwise. Under the circumstances the legislative intent has been clearly expressed, and it is to the effect that railways operated by steam cannot be constructed upon streets and highways except as provided in a section of the Code hereinafter referred to. Or, if this be not true, the legislative assent contained in section 1262 of the Code has been withdrawn by the enactment of the statute of 1874. We are not called on to vindicate or condemn the wisdom of this statute. To construe or ascertain its meaning is our only province.

The various decisions above referred to are not now correct expositions of the law, because they have been superseded by that branch of the...