193 Iowa 763 | Iowa | 1922
— Deceased was about seven years of age, and lived with her parents, Charles G. Brose and wife, in the city of Dubuque, some six blocks from the scene of the accident. On July 9, 1919, she was visiting at the home of her aunt, Bertha Kennecker, whose home was situated on Lot 28, "West’s Addition to Dubuque. The Bee Branch sewer passes in the vicinity of and through Lots 27 and 28, West’s Addition, and runs in a northwesterly and southeasterly direction, the flow of the water being to the southeast, and empties into the Mississippi River. It is 7 feet high and 14 feet wide inside, constructed of rock and concrete. The concrete portions are 10 feet in diameter. It has a stone arch across the top, and concrete and rock side walls and bottom. The side walls are two feet thick. It is covered with earth from the Kennecker property across the Milleville road, over into the Heim property, about 720 feet. The intake, about 100 feet southeast, is built after the same design as at the end of the stone sewer in the Kennecker property. The sewers are of the same dimensions. It is partly open and partly covered, on Lots 27 and 28. The lots are large, and there is a large lawn between the houses on the two lots. The sewer was covered by about three feet of earth and grass, which formed part of the lawn at the point where the earth caved in and deceased was precipitated into the water. The sewer itself did not cave in. It was the ground over the rock part of the sewer that gave way; and when the ground gave way, deceased went down into the ditch below the sewer. The evidence shows that the dirt or sod had become undermined by washing. The point where the caving occurred was about 12 feet above the point where the ditch is open. The open ditch below extends about 100 feet southeast, when it is again covered under an alley or street; and from there on to the river are places that are covered and places that are open.
The sewer was constructed partly in 1898, and finished in 1915, in a ravine and natural watercourse. Some of the evidence tends to show that, at places, the ditch was not wide enough for the sewer, and some excavation had to be made. Generally speaking, however, the ditch was as large as the sewer, and the ditch was of the same size, area, and dimensions as the original ditch. The original ditch, or watercourse, had been
There was a path across the lawn, used to go from the rear of one house to the other. -It was across the covered part of the sewer, which had been used as and became a part of the lawn. The path was used and traveled by the owners of the two lots. The public had no right to use the path, and did not use it. I)e-
It is alleged in the petition that, while deceased was visiting at the home of her aunt on the date in question, there was a heavy rain storm; that Lemon Street became flooded; that the dwelling on Lot 28 ivas being flooded, and the dwelling on the adjoining lot, Lot 27, appeared to be safer; that deceased started to follow her aunt over and across the above described property to the dwelling on Lot 27; that, while she was walking over the covering over said Bee Branch sewer, which passes through said lots, the same gave way, and the force of the water swept deceased into said sewer, causing her to lose her life; that deceased was not negligent. It appears from the evidence that the mother or aunt, carrying another child, had safely crossed the point that later went down with deceased. The water had washed .out the ground, not merely over the top at the point in question, but the sides of the ditch were washed away, leaving it some 32 feet wide in places, where it had originally been 10 feet wide.
The negligence .charged is that defendant constructed and maintained said Bee Branch sewer in such a way as to leave openings therein, "without any protection or barrier of any kind, and without any grate, screen, or covering, to prevent people from falling into the same and being washed into the same; and that the city failed to provide the sewer with sufficient capacity toi carry off the excess water accumulating in and about Lemon Street, and,failed to provide a storm sewer of sufficient capacity to carry off the water coming over and across Lemon Street and adjacent territory.
It was also alleged that, within 30 days after the death of deceased, to wit, on August 7, 1919, a notice and verified statement of the time, place, cause, and extent of the injury causing the death was served upon the defendant, as required by law and the ordinances of the city. The notice recites that, at the time deceased was swept into the sewer, the amount of water in the
Defendant, answering, denies generally, but admits that the sewer in question ran in the direction stated, and that the water flows to the southeast; admits that, on the day in question, there was a heavy rainstorm, and that Lemon Street in the city became flooded. Further answering, it states that, on the date named, there occurred within the city of Dubuque and within the immediate vicinity an extraordinary, unprecedented rain; that the valleys to the north and the district drained by this sewer and ditch were flooded, so that the water was not confined within any definite bounds; that the place where the accident happened was in the path of the flood, and was being flooded; that the death was caused by said unprecedented rainstorm; that the rainfall could not reasonably be anticipated by defendant; and that the death was due to the act of God, and not to any negligence of the defendant. The answer further alleges contributory negligence.
The trial commenced May 10, 1920. On May 11th, plaintiff amended, setting up the 30-day notice, and on May 12th, plaintiff asked leave to file another amendment, alleging that the capacity of the sewer in question was not sufficient to carry the water accumulating above the sewer when there were heavy rains; that, on July 9th and prior thereto, in the intake or sewer to the southeast of the opening on Lots 27 and 28, the flow of water was obstructed and retarded; that said sewer was partly closed because of an accumulation of rock, mud, brush, ai4d other debris which lodged therein to the depth of about a foot, which condition the city knew, or in the exercise of due care and caution should have known, but negligently allowed to remain; that, by reason of said accumulation, the water passing through the same on July 9th was held back in the open portion of the sewer on said lots, causing same to rise to the top of the banks and undermine the covering over that part of the sewer upon which deceased was walking, thereby weakening its sup
1. Appellant contends that the court erred in refusing
2. Some of the cases cited by appellant relate to the duty of the city to maintain its streets in a reasonably safe condition for travelers. The place in question -was not dangerous to the traveling public;, and there was no duty devolving upon the city to erect a barrier to protect travelers upon the street from such injury. The case involves the liability of the city to another class of persons than travelers upon its streets. Tally v. City of Atlantic, 92 Iowa 135. In that case, children at play in a sand pit undermined the sand, and were killed.
3. It may be conceded, as contended by appellant, that deceased was not a trespasser, in passing along the path, since she
“We cannot reconcile our minds to the opinion that the municipal authorities are to be blamed or found guilty of actionable negligence for their failure to foresee and guard against*774 such an extraordinary occurrence as this was. We are not assured — in fact, we have much doubt — that a grating at the end of the culvert, such as is suggested in plaintiff’s petition, would have saved the child’s life. If such a safeguard had been there, and the child had been killed by being hurled against it, we might now be pondering whether the child could have passed through the unobstructed culvert ■ unhurt. It is not contended that the municipal government was at fault in failing to have railings along the edge' of the sidewalks, to prevent children from falling into the gutters or ditches. On the, contrary, it must be conceded that the municipality could no more avoid the possibility of a child’s falling into an open ditch or gutter than it could make it impossible for a child to fall into the river. The plaintiff’s contention, therefore, resolves itself into this: That the city should have had life-saving contrivances for children who might fall into an open ditch. * * * Our conclusion is that the city is not responsible for this deplorable accident. ’ ’
In that case, it was admitted that the system of drainage was inadequate at the time of the accident, and a rain had filled the ditches. The water was rushing, through the culvert, and the child, in falling into the open ditch, was drawn into the culvert, as stated. In City of Rome v. Cheney, supra, a nine-year-old child was drawn into an open culvert which led into an open sewer, and was drowned. It had just rained hard, and the water near the culvert was flowing swiftly into it. The child, walking along the sidewalk, or wading in the water near the open culvert, slipped and fell into the open culvert, and was drowned. The negligence charged was that the city had constructed a large sewer near the sidewalk, and allowed it to remain in a dangerous condition, with no grating to prevent objects or bodies from being washed into the underground sewer. It was shown, however, in that case, that any impediment to the flow of water in the nature of grating over the hole connecting the two sewers would have clogged the grating with trash and mud, and caused the gutter to overflow, in times of heavy rain, and do serious damage. It was held that there could be no recovery, because the city could not be charged
5. One or two other questions argued will be mentioned very briefly, since the views already expressed are controlling. The evidence introduced on behalf of plaintiff tends quite strongly to show that the storm and flood were unprecedented, although there is evidence that, prior to this, the open ditch liad been bank-full more than once. The defendant introduced no evidence on that branch of the case, and under the circumstances, we express no opinion as to whether there was a jury question as to that. We think the evidence does not show that deceased was guilty of contributory negligence, at-least; but for the other matters, that would be a question for the jury. We think there is no merit in appellee’s claim that there was a fatal variance between the evidence and the allegations of petition and the statements in the notice to the city as to the time of day when the accident occurred. The allegations are that it was between 3 and 4 o’clock in the afternoon; whereas the
For the reasons given, the judgment of the district court is — Affirmed.