Upp v. Darner

• Decision Date: 13 March 1911
• Citation: 130 N.W. 409,150 Iowa 403
• Parties: UPP v. DARNER.
• Court: Iowa Supreme Court

150 Iowa 403

130 N.W. 409

UPP

v.DARNER.

Supreme Court of Iowa.

March 13, 1911.

Appeal from District Court, Wapello County; Frank W. Eichelberger, Judge.

Action at law to recover damages due to the erection of a barbed wire fence by the defendant within the city of Ottumwa, contrary to an ordinance thereof, resulting in the death of an animal owned by plaintiff which while frightened ran into the fence and received injuries which necessitated her killing. The defendant, while admitting the erection of the fence, pleaded that he had sold the premises upon which it had been placed, before the accident, and that after he sold the property the fence was cut, part of it knocked off the poles, and some of the wires placed across a driveway. He also pleaded that the fence as erected by him did not constitute a violation of the city ordinance. Upon the issues thus joined the trial court directed a verdict for defendant, and plaintiff appeals. Affirmed.Chester W. Whitmore, for appellant.

Tisdale & Heindel, for appellee.

DEEMER, J.

The city of Ottumwa had an ordinance which made it unlawful for any one to use any barbed wire, either in the construction or maintenance of any fence, inclosing in whole or in part any lot within the corporate limits of said city. In the year 1907 defendant was the owner of lot 160, which was within the limits of the city, and for the purpose of keeping teams from driving over this lot he hung a single strand of barbed wire between two electric light poles some 152 feet apart at the rear of his lot. This was an inside lot, and there was no alley at the rear thereof. The strand of wire was three or four feet north of the south boundary line of the lot, and, as we have said, was placed there to keep coal teams from driving across the rear end. This wire was often down and was put up by defendant, save the last time he saw it when he owned the place, and again after he sold it. So that according to defendant's testimony, who was offered as witness for plaintiff, the wire was down when he sold the place, was again replaced, then came down again, and had been replaced by some one at the time when the accident in question occurred. Some time prior to the accident defendant sold the property in question to one Sampson. Plaintiff was a contracting carpenter and as such had undertaken the construction of a house on lot 160 for the then owner thereof, who had purchased the same from the defendant. On May 28, 1908, he drove into the east side of the lot from the front to a point 30 or 40 feet from the rear of the lot, got out of his buggy, fastened a 20-pound iron hitching weight to the bit of the animal he was driving, and turned to speak to one of his workmen, who stood near with the working plans for the building, which was being constructed, in his hands. The wind caused a fluttering of the pages of these plans, and this frightened the animal so that she started to run, dragging the weight by her bit over the smooth wet grass. Before plaintiff could overtake her, she ran into the strand of barbed wire which was then hanging loosely between the posts, causing the injuries which resulted finally in her death. Upon this state of facts, the trial court, at the conclusion of the testimony, directed a verdict for defendant, and the appeal is from this ruling.

Plaintiff's counsel very frankly admit that, if this be an action of nuisance, no recovery can be had of defendant for the reason that he was not maintaining the same when the accident happened. His insistence is that his action is for a tort (in other words, for negligence), and that defendant is responsible for that negligence both at common law and because of his violation of the ordinance of the city.

We shall assume for the purpose of argument that defendant would have been liable both at common law and under the statute had the accident happened while he was the owner of the property and had expressly or impliedly invited plaintiff to enter upon the premises where said barbed wire was being maintained, and this liability might have been predicated upon the theory that the wire was a nuisance or upon negligence of the defendant in erecting the wire. We shall also assume, for present purposes, that the erection of the wire was contrary to the ordinance of the city, and that by reason thereof negligence might have been found by the jury, had defendant retained the ownership of the property.

Eliminating, as we must, the idea that defendant may be charged because of his maintenance of a nuisance, we have the single question: Is he liable on the theory of negligence? It is fundamental, of course, that the first requisite in establishing negligence is to show the existence of a duty which it is supposed has not been performed. There can be no negligence unless there is a duty which has been violated. Eakins v. Railway Co., 126 Iowa, 324, 102 N. W. 104;Hughes v. Railroad Co., 71 N. H. 279, 51 Atl. 1070, 93 Am. St. Rep. 518. Actionable negligence is the breach of a duty owed by defendant to plaintiff, and where there is no duty there is no negligence. Again, in Faris v. Hoberg, 134 Ind. 274, 33 N. E. 1029, 39 Am. St. Rep. 261, it is said: “In every case involving actionable negligence, there are necessarily three elements necessary to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; (3) an injury to the plaintiff from such failure of the defendant. When these...