Wheeler v. City of Ft. Dodge

• Decision Date: 26 September 1906
• Parties: WHEELER v. CITY OF FT. DODGE.
• Court: Iowa Supreme Court

131 Iowa 566

108 N.W. 1057

WHEELER

v.CITY OF FT. DODGE.

Supreme Court of Iowa.

Sept. 26, 1906.

Appeal from District Court, Webster County; J. R. Whitaker, Judge.

The opinion states the case. Reversed.Kenyon & O'Connor, Wright & Nugent, and J. B. McCrary, for appellant.

Mitchell & Hackler and Healy Bros. & Kelleher, for appellee.

WEAVER, J.

The petition alleges that, with the consent and by the order and authority of the defendant city, one of its principal streets was on July 4, 1903, obstructed by a wire stretched from the roof of the courthouse bordering upon said street and drawn across the traveled street to a post or fastening near the ground on the opposite side of said street. It is further alleged that said wire was so stretched and prepared to facilitate the purpose of a female acrobat or performer of dangerous feats to slide down said wire from the courthouse roof to the ground below while “hanging by her teeth,” which purpose was publicly advertised and well known to the city and its officers, who in violation of their statutory duty to keep the streets free from obsructions to travel, not only neglected and failed to prevent the erection and use of such nuisance, but failed and neglected to cause the same to be removed and permitted the same to remain and be put to its designated use to the manifest peril of all persons lawfully using said public way. It is further alleged that as the plaintiff, having no knowledge or notice of the existence of said nuisance, was passing along said street, as he lawfully might, the acrobat or performer, undertaking to make the advertised “slide for life,” fell from the wire so obstructing the street as aforesaid striking the person of the plaintiff with great force and causing him serious and permanent injury without fault or negligence on his part. For the injuries thus received a recovery in damages is demanded. The defendant denies the allegations of the petition. The testimony, without substantial controversy, tends to show that, preparatory to a celebration of the national anniversary, the city council of Ft. Dodge by formal resolution granted to an organization known as the “Commercial Club,” “the privilege of the streets for a fourth of July celebration, * * * the privilege of selling privileges for booths and entertainments such as they may see fit to permit with the concurrence of the mayor of the city, and the sole right to collect and appropriate all revenues derived therefrom to defray the expenses attendant upon such celebration; that they be granted the privilege of discharging fireworks for an evening display; and that said government appoint such special police as it may deem necessary to preserve order.” Pursuant to this authority, and in furtherance of the general purposes of the celebration, the Commercial Club procured or permitted one De Etta to come to Ft. Dodge with the exhibition refered to in the petition. His coming and the proposed “slide for life” by a young woman under his management were advertised as one of the attractions of the day. The wire on which the slide was to be executed was put up early in the morning of the celebration or during the evening prior thereto, stretching from the roof of the courthouse, which stands flush with the public sidewalk, downward and outward in a diagonal course across the street known as Central avenue, and some distance into a crossstreet known as Seventh street, ending at a telephone pole to which it was fastened near the ground. That the street was to be thus occupied was a matter of very general knowledge, and the apparatus as thus erected was seen by various members of the council and other city officers early in the morning and before any attempt was made to use it. That its existence and purpose were at all times known to the city is beyond the shadow of a doubt, and that the city by its officers and representatives undertook so far as possible to authorize and approve this use of the streets is equally beyond question. As the crowd gathered, police officers paraded the street under the rope attempting to keep the carriage way clear; but there is evidence that no attempt was made by the city or its officers to rope off that part of the sidewalk beneath the slide, nor was the public excluded therefrom. In order to make the slide, and give the performer the appearance of “hanging by her teeth,” a belt or harness of some kind was placed about her body and concealed by her clothing, and from this a strap was attached to a ring or pulley running loose along the wire. With the bulk of her weight thus suspended, and the end of another strap depending from the ring or pulley on the wire placed in her mouth, she was to slide outward from the roof down across the street into a net prepared to receive her at the telephone pole. At the advertised hour a large crowd had assembled filling the sidewalk under the rope and all other available space in that vicinity. By reason of some defect or weakness in the harness worn by the performer she had scarcely started on her perilous feat when she fell a distance of some 70 feet to the sidewalk below, receiving fatal injury to herself and striking and injuring the plaintiff. The testimony tends to show that the plaintiff was a laborer. He did not take any of the local papers, and, while he knew that a celebration was in progress, he did not know of the proposed slide for life. With his wife he came along the sidewalk in front of the courthouse making his way with or through the crowd there gathering. Pausing a while for his wife to rest herself, he stood at the outer edge of the walk to look about him, and in this position was struck and injured as already related. At the close of the testimony from which we have already said the jury would have been justified in finding the truth of the foregoing statement of facts, the court sustained the motion of the defendant to direct a verdict in its favor. From the judgment entered upon said directed verdict, the plaintiff appeals.

1. A principal ground of the motion to direct a verdict for the appellee, and one of the chief propositions upon which its argument in this court is bottomed, is the assumption that the apparatus stretched over and across Cenral avenue and Seventh street for the performance of the “slide for life” was not an obstruction to, or encroachment upon, the public way, and was not in any sense a nuisance. With this contention we cannot agree. The fact that the wire in most of its course passed through the air above the heads of the people using the walks and carriageway below does not remove its character as an obstruction of the street. The public right goes to the full width of the street and exends indefinitely upward and downward so far at least as to prohibit encroachment upon said limits by any person by any means by which the enjoyment of said public right is or may be in any manner hindered or obstructed or made inconvenient or dangerous. The principle here stated has been upheld in a multitude of cases, of which we need only to call attention to the following: In Bohen v. Waseca, 32 Minn. 176, 19 N. W. 730, 50 Am. Rep. 564, the city was held liable for injury occasioned to a traveler on the sidewalk by the fall of an awning which projected into the street space from an abutting building. The court there well says: “There is no sound reason why the duty of a municipal corporation to keep its streets in a safe condition should not require it to take reasonable precautions against dangers from overhead as well as under foot.” See, to the same effect, Hume v. Mayor, 74 N. Y. 264, and Drake v. Lowell, 13 Metc. (Mass.) 292. A bridge or covered viaduct erected between the upper stories of buildings on opposite sides of a street for the convenience of the business of the owner of said buildings has been declared an obstruction to the street constituting a nuisance, although it effected no physical obstruction or obstacle to the use of the roadway below. Bybee v. State, 94 Ind. 443, 48 Am. Rep. 175. It has also been held that a rope stretched across the street was a nuisance, and a person injured thereby was entitled to recover from the city which negligently permitted it. French v. Brunswick, 21 Me. 29, 38 Am. Dec. 250. A similar rule had been applied to an injury to a traveler by a falling limb from an overhanging tree. Jones v. New Haven, 34 Conn. 1. Also an injury caused by the falling of a pole which citizens had been permitted to erect in the street. It was there said to be immaterial that the pole was set in a place or position where it did not actually obstruct travel. Norristown v. Moyer, 67 Pa. 355. A bay window projecting into the street space from the upper story of an abutting building is held by the Pennsylvania court to be a nuisance which cannot be justified or maintained even by an express ordinance of the city. Reimer's Appeal, 100 Pa. 182, 45 Am. Rep. 373. The maintenance of a dangerous boiler or heating apparatus in an area way under a public street is a nuisance for the existence of which the city may be held responsible. Beall v. Seattle, 28 Wash. 593, 69 Pac. 12, 61 L. R. A. 583, 92 Am. St. Rep. 892. See, also, Abilene v. Cowperthwait, 52 Kan. 324, 34 Pac. 795;Smith v. Leavenworth, 15 Kan. 81;Woodbury v. Dist. of Col., 5 Mackey (D C.) 127.

That the city may be held liable for permitting conditions which endanger travelers, but do not constitute any defect in the street surface or obstruct travel thereon, has been expressly held by this court. For instance, in Stanley v. Davenport, 54 Iowa, 463, 2 N. W. 1064, 6 N. W. 706, 37 Am. Rep. 216, the use on the street of a steam motor the appearance of which was calculated to frighten horses, although such use had been authorized by ordinance, was held to be a nuisance for which the city was liable. In Duffy v. Dubuque, 63 Iowa, 171, 18 N. W. 900, 50 Am. Rep. 743, the city was held chargeable with neglect in...