Updegraff v. City of Ottumwa
| Decision Date | 15 October 1929 |
| Docket Number | 39695 |
| Citation | 226 N.W. 928,210 Iowa 382 |
| Parties | GERTIE UPDEGRAFF, Appellee, v. CITY OF OTTUMWA, Appellee; KRESGE REALTY COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 16, 1930.
Appeal from Wapello District Court.--E. S. WELLS, Judge.
Joint action against the Kresge Realty Company and the city of Ottumwa to recover damages for personal injuries. The jury returned a verdict in favor of the city and against the Realty Company. The Realty Company appeals, and the plaintiff also appeals from the judgment in favor of the city.--Affirmed on both appeals.
Affirmed on both appeals.
McNett McNett & Kuhns, for appellant.
Jaques Tisdale & Jaques and Jones & White, for Gertie Updegraff, appellee.
E. G. Moon, for City of Ottumwa, appellee.
STEVENS, J. ALBERT, C. J., and DE GRAFF, MORLING, and WAGNER, JJ., concur.
Market Street in the city of Ottumwa runs north and south. Appellant is the owner of a building on the west side thereof, which abuts upon the street. Appellant acquired title to the property March 31, 1925, and on April 1st leased it to the S. S. Kresge Company. Long prior to these transactions, the owner of the building constructed a down spout on the east side of the building, adjacent to the sidewalk, for the purpose of carrying water off the roof thereof. The down spout was constructed of galvanized iron, and conveyed the water through a tile, into which it was inserted at the lower end, into a sewer.
Early on the morning of December 16, 1925, while appellee and her husband were walking on Market Street, she fell, and was severely injured. The cause of her fall is alleged to have been an accumulation of ice on the sidewalk immediately opposite the down spout. The evidence showed that there was a hole in the down spout, about three feet and three inches above the sidewalk. It is the claim of appellee that snow, recently falling on the roof of the building, had melted, the preceding day, and that the water, escaping from the hole in the down spout, fell upon the sidewalk, freezing, and causing ice to form, as previously stated. Evidence was introduced which tended to show, and from which the jury might have found, that the defect in the down spout existed at the time of, and for several months prior to, the acquisition of title to the building by appellant and the execution of the lease to the S. S. Kresge Company. We will first dispose of the appeal of the Realty Company.
I. The duty of maintaining the streets and sidewalks in a reasonably safe condition is imposed by statute upon cities and towns. Section 5945, Code, 1927. The duty thus imposed by statute upon municipalities does not, however, relieve property owners or others from the duty not to obstruct or place dangerous instrumentalities thereon, so as to endanger the safety of the public rightfully using the same, nor from liability for damage occasioned thereby. Perry v. Castner, 124 Iowa 386, 100 N.W. 84; Edwards v. Hasel, 157 Iowa 416, 138 N.W. 501; City of Ottumwa v. Parks, 43 Iowa 119; Calder v. Smalley, 66 Iowa 219, 23 N.W. 638; Atkinson v. Sheriff Motor Co., 203 Iowa 195, 212 N.W. 484. This rule has been applied in many cases and under a great variety of facts. It is elementary that the owner of a building abutting upon a public street may not lawfully collect water accumulating from rain or snow upon the roofs of buildings, and by some artificial means discharge the same upon the sidewalk or street, where it freezes and forms ice. Atkinson v. Sheriff Motor Co., supra; Betts v. Carpenter, 239 Mich. 260 (214 N.W. 96); Benard v. Woonsocket Bobbin Co., 23 R.I. 581 (51 A. 209); Tremblay v. Harmony Mills, 171 N.Y. 598 (64 N.E. 501); Reedy v. St. Louis Brew. Assn., 161 Mo. 523 (61 S.W. 859); Stephens' Admr. v. Deickman, 158 Ky. 337 (164 S.W. 931); Cerchione v. Hunnewell, 215 Mass. 588 (102 N.E. 908); Hynes v. Brewer, 194 Mass. 435 (80 N.E. 503); Field v. Gowdy, 199 Mass. 568 (85 N.E. 884). Nor may such owner negligently permit the water to escape from a defective down spout or other agency and accumulate upon the sidewalk so as to freeze and cause injury to others. Stephens' Admr. v. Deickman, supra; Hynes v. Brewer, supra; Woram v. Noble, 41 Hun 398; Delaware, L. & W. R. Co. v. Madden, 241 F. 808.
It is further alleged in the petition that, long prior to the construction of the down spout in question, the city council of the city of Ottumwa enacted an ordinance making it "unlawful for any person, firm, partnership or corporation to permit any of the down spouts or gutters from any building to be so constructed as to directly or indirectly discharge water upon any of the sidewalks of the city," and requiring that "all down spouts or discharge gutters shall be constructed so as to run the water from the building which they drain, into the gutters or sewers of the city so as not to permit the water discharged therefrom to run upon or spread over the surface of any sidewalk." The court interpreted this ordinance as imposing an affirmative duty upon appellant to maintain the down spout in a reasonably safe condition, so as not to directly or indirectly discharge water upon the sidewalk.
Before considering this theory of the case, we desire to dispose of another proposition urged by appellant for reversal: namely, that the written lease by which the building and premises in question were leased to the S. S. Kresge Company contained a provision requiring the lessee to, "at its own expense, make any and all repairs which may be necessary to said premises or any part thereof, damage by fire and unavoidable casualty excepted;" and that this condition of the lease relieved it from liability for damages occurring during the term of said lease because of negligence on the part of the tenant to repair the down spout, or in failing to keep it in good condition.
The law is doubtless well settled in this and most, if not all, other jurisdictions that the landlord who has parted with full possession and control of his premises by lease to a tenant is not liable for injuries to third persons caused by the negligence of the tenant. Starr v. Sperry, 184 Iowa 540, 167 N.W. 531; Dillehay v. Minor, 188 Iowa 37, 175 N.W. 838; Willis v. Snyder, 190 Iowa 248, 180 N.W. 290; Morse v. Houghton, 158 Iowa 279, 136 N.W. 675; Burner v. Higman & Skinner Co., 127 Iowa 580, 103 N.W. 802. But, on the other hand, if the nuisance exists at the time the lease is executed, a covenant therein requiring the tenant to make repairs at his own expense will not relieve the landlord from liability for injuries occasioned thereby. Maloney v. Hayes, 206 Mass. 1 (91 N.E. 911); Ames v. Brandvold, 119 Minn. 521 (138 N.W. 786); Lufkin v. Zane, 157 Mass. 117 (31 N.E. 757); Dalay v. Savage, 145 Mass. 38 (12 N.E. 841); Wixon v. Bruce, 187 Mass. 232 (72 N.E. 978); Cerchione v. Hunnewell, supra; Swords v. Edgar, 59 N.Y. 28; Fenno v. Gay, 146 Mass. 118 (15 N.E. 87); Wunder v. McLean, 134 Pa. 334 (19 A. 749); Harte v. Jones, 287 Pa. 37 (134 A. 467); Samuelson v. Cleveland Iron Min. Co., 49 Mich. 164 (13 N.W. 499); Gardner v. Rhodes, 114 Ga. 929, 41 S.E. 63; Lee v. McLaughlin, 86 Me. 410, 30 A. 65; New Castle v. Kurtz, 210 Pa. 183 (59 A. 989). This rule appears to have been quite generally adopted in other jurisdictions, but has not squarely arisen in this state.
The proposition urged by appellant at this point, although supported by authority, is not decisive of this case.
As already stated, the evidence, more or less indefinite in character, it is true, disclosed that the defect in the down spout had continuously existed for months prior to the date of the lease. Some paragraphs of the court's charge to the jury were apparently framed on the theory, that the jury might find, under this evidence, that the condition complained of antedated the execution of the lease, and that, if it did, the terms of the lease did not constitute a defense. Other paragraphs of the charge, however, clearly submitted the case to the jury upon the theory that the defect in the down spout existed in violation of the provisions of the ordinance, and that, if the jury so found, it constituted negligence. It is of these instructions that appellant complains.
Appellant rests its contention upon the hypothesis that the owner of the building, having constructed a down spout of sufficient size and material and in a manner to carry water accumulating on the roof into a sewer, and so as not to discharge it directly or indirectly upon the sidewalk, has met the full requirement of the ordinance. The argument of counsel proceeds on the theory that the word "constructed," as used in the two sections of the ordinance, must be limited in their scope and application to the original down spouts and cannot be so interpreted as to impose an obligation on the owner to maintain the same in its original condition. This argument is based largely upon the thought that the ordinance is penal in character, and must be strictly construed. Primarily, the duty of the property owner is to comply with the ordinance in the construction of down spouts. This must be full and adequate. The purpose of the ordinance obviously was to prevent the owner of buildings from discharging water therefrom upon the sidewalk in such a manner and under such conditions as to imperil the safety of the public using the same. The ordinance does not prescribe the material necessary to be used in the construction of down spouts. A building, as ordinarily constructed in cities and towns, is permanent in character. Likewise, the streets upon which it abuts, and the improvements, such as sidewalks and payment, are of a similar character, and likely to continue indefinitely. The danger to be apprehended from the...
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