169 F. 321 | 8th Cir. | 1909
(after stating the facts as above). The city of Winona is a municipal corporation created, endowed with its powers, and charged with its duties by the Regislature of the state of Minnesota. The character and the limits of the powers and liabilities of such corporations are questions of local law, upon which the decisions of the highest judicial tribunals of the states which create them are authoritative in the national courts, because these questions are determinable by the construction of the constitutions and statutes of the states under which the municipalities are organized. Detroit v. Osborne, 135 U. S. 492, 499, 10 Sup. Ct. 1012, 34. L. Ed. 260; Claiborne County v. Brooks, 111 U. S. 400, 410, 4 Sup. Ct. 489, 28 L. Ed. 470; Madden v. Lancaster Comity, 12 C. C. A. 566, 570, 65 Fed. 188, 192; Blaylock v. Incorporated Town of Muskogee, 54 C. C. A. 639, 640, 117 Red. 125, 126. So far, therefore, as the Supreme Court of Minnesota has decided the extent of the powers and liabilities of municipal corporations, those decisions must control in this case. The opinions of other courts become immaterial, and it will be unnecessary to notice or consider them.
Under the decisions of the Supreme Court of Minnesota municipal corporations are charged with the duty to exercise ordinary care to make and to keep their roods, streets, and public ways reasonably safe for travelers thereon, and also with the duty to exercise reasonable cue to so use their property and rights as to inflict no unnecessary injury upon persons or upon their property. Shartle v. City of Minneapolis, 17 Minn. 308 (Gil. 284); Blyhl v. Village of Waterville, 57 Minn. 115, 58 N. W. 817, 47 Am. St. Rep. 596; Wiltse v. City of Red Wing, 99 Minn. 255, 260, 109 N. W. 114.
The bridge across the Mississippi river on which this accident occurred is a public highway, and the city of Winona is liable for negligence in its maintenance and care to the same extent as it is for negligence in the care and maintenance of its public streets. Willis v. Winona City, 59 Minn. 27, 60 N. W. 814, 26 L. R. A. 142. With these established rules in mind, let us consider the complaints concerning the trial of these cases.
The first specification of error presented is that the court received in evidence the petition of the Trades and Rabor Assembly that the fire whistle be blown daily at 5 in the afternoon, the action of the city council of the defendant in May, 1905, granting that petition, and the curfew ordinance passed in January, 1906, whereby the engineer of the waterworks was directed to designate 9 in the afternoon each day by nine short blasts of the whistle; and the argument is that, in as-
It is assigned as error that the court permitted the introduction in evidence of testimony that other horses of ordinary gentleness and tractability were frightened while traveling over this bridge by the blasts of this steam whistle at various times during nine years preceding the accident in question. The reasons urged in support of this specification of error are: (1) That Nichols’ horses were frightened by a single .blast of the whistle, five seconds in duration, while the horses of the witnesses were scared by several blasts in quick succession caused by the automatic action of the fire-alarm system, but it was evidently the first sudden sound that tended to frighten the horses far more than its subsequent repetition; (2) that the first blast is not at its commencement as loud as it becomes later, because there is at first stationary steam in the pipe which must be started forth, but there could have been no very substantial difference in the blasts on that account, because the steam pressure was constantly from 85 to 110
Counsel for the city argue that the refusal of the court to instruct the jury to return a verdict in its favor was error: (1) Because there was no lack of care in the construction and the mainienance of the bridge, and the city was not liable for injuries caused by its acts of commission or omission outside of that structure; (2) because the whistle was blown for a governmental and not for a private or corporate purpose, and the city is exempt from liability for acts so done, and the rights of the injured were not thereby infringed; (3) because the location and the use of the whistle were discretionary with the city, and the exercise of that discretion was not reviewable by the courts; (4) because the act of blowing the whistle to indicate the
It is only when the material -facts and the rational inferences from them are so clearly established that but one finding from them would be sustained by the court that the duty is imposed upon it to withdraw the question of the causal negligence of a defendant from the jury. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485; Chicago Great Western Ry. Co. v. Price, 38 C. C. A 239, 243, 97 Fed. 423, 427. Ten witnesses testified to 13 occasions within 9 years preceding this accident upon which gentle and tractable horses upon this bridge near the turn where Nichols was when the whistle blew had been frightened by blasts of this whistle, and had jumped or run or turned around. One witness testified that his horse was so terrified that he jumped and broke the shafts of his buggy, another that his horses were so scared that they ran and tore the yoke near the tongue and broke a strap from the evener, still another that his horses were so frightened that they ran and caused a tug to unhitch, and another still that his horses were so terrified that they ran while he was driving them so that they threw his wife out of his wagon and injured her. At the time of this accident Rosinski was driving the leading team across the bridge, Duff the second team, and Nichols was either holding his team stationary or at a slow walk very near the turn of the bridge when the whistle blew. Rosinski testified that his horses immediately jumped and became frightened, but he held them. Duff testified that Nichols stopped his horses near the turn to let him pass, that he passed Nichols, that the latter’s horses were then quiet, that just after he passed him the whistle blew, that the moment it blew both teams were on the dead run, that his horses were gentle, but they were frightened, ran, and jumped and nearly got away. This was substantial and persuasive evidence that the blowing of this whistle was likely to frighten horses passing it on the bridge, that it rendered the bridge unsafe for drivers of teams thereon, and that, in the light of the evidence that the sound it gave forth was shrill, startling, “awful loud,” and could be heard from 5 to 10 miles, this fact was so notorious that a jury was warranted in finding that it must have been known to the city, and that a person of ordinary prudence and intelligence would have anticipated as its natural and probable result the fright and flight of passing horses and serious injuries to those who should be drawn by them.
Nor can the contention be sustained that the unhooking of the tugs, the breaking of the pole, or any of the other events between the blowing of the whistle and the injuries and death was, and the blast of the whistle was not, the proximate cause of those dire effects. The proximate cause of an injury is the primary moving cause without which it would not have been inflicted, but which, in the natural and
There is a statement in the brief that Nichols and Irene Botzet knew that the whistle was blown daily at 5 in the afternoon and that, they assumed the risk of injury from it. The place in the record where the evidence that they had this knowledge may be found is not pointed out, and a search of the record for it has proved vain. The transcript, however, docs show that Irene testified that she did not know that the whistle blew at 5 o’clock, and that just as Nichols was approaching the turn of the bridge nearest to the whistle a few seconds before 5 o’clock he held his horses to a walk while Rosinski passed him, and then stopped them very near the turn while Duff passed him, and then it was 5 o’clock, the whistle blew, the two rear teams ran instantly, and the injuries and death followed. It is difficult to believe that Nichols would have walked and then stopped his horses at the most dangerous place on the bridge at 5 o’clock in the afternoon if he had known that the whistle blew daily at that hour, when he might just as easily have driven them on and been a few hundred feet distant when the blast came.
Notice or knowledge and appreciation of the danger are indispensable to the assumption of the risk of it (Chicago Great Western Ry. Co. v. Price, 97 Fed. 423, 38 C. C. A. 239, 247), and the evidence that the victims of this accident knew and appreciated the danger from the blast of the whistle was far from being so conclusive that it was the duty of the court to instruct the jury that they assumed the r;sl: of it.
The burden was upon the defendant to prove contributory negligence, and it was the duty of the court to instruct the jury that Nichols and Irene were guilty of it, only in case the evidence of it was so clear that the court would not sustain a finding to the contrary. The evidence upon this subject was the testimony of one witness who said that some days before the accident he rode with Nichols behind the
There was no evidence in the cases that Irene Botzet was guilty of any contributory negligence, and, even if Nichols had been guilty of it, his negligence could not have been 'imputed to her. Union Pacific Ry. Co. v. Lapsley, 51 Fed. 174, 2 C. C. A. 149, 152, 16 L. R. A. 800.
The city concedes that it might be liable for defects and obstructions within the limits of the roadway of the bridge which rendered that highway unsafe for travelers, but its counsel insist that it was not liable for the blowing of its whistle although- it rendered the- bridge unsafe, because the whistle and the blowing were beyond the limits of the bridge; and they argue that the declaration of the court below that the city was not liable in this case if the horses were frightened by the whistle of a locomotive of a railroad company sustains their position. But the city was not liable for the blast of the whistle of the locomotive, because there was no evidence that the whistling of this or other locomotives had theretofore scared horses on the bridge so as to impose upon the city the duty to suppress it, while the evidence was plenary that the blowing of .the city’s fire whistle had terrified horses in this way.
The general duties were imposed upon the city to exercise ordinary care to keep the roadway of this bridge reasonably safe for travel, and to so use its waterworks building and the whistle thereon as to inflict no unnecessary injury upon the rights or property of persons or corporations. -These duties were not limited to cape to prevent injuries arising from acts and omissions within the limits of the highway
Persons and private corporations that negligently injure persons rightfully traveling upon a street or highway by blasting rock on their own premises, thereby throwing stones upon the highway, or by negligently frightening their horses by blowing whistles upon their own property, do not escape liability for the damages they thus cause (Albee v. Shoe Company, 62 Hun, 223, 16 N. Y. Supp. 687; Knight v. Goodyear, etc., Rubber Co., 38 Conn. 438, 9 Am. Rep. 406; Powell v. Nevada C. & O. Ry., 28 Nev. 305, 82 Pac. 96), although it is not their special duty to care for the safety of streets and highways, and a fortiori a city upon which the law imposes that particular duty may not escape liability for the injuries it causes in that way.
. Nor is the damage which may be recovered for negligence of this character limited to that inflicted upon property. Damages for injuries to the person are likewise recoverable, because the duty imposed on the municipality to avoid unnecessary injury to persons is at least as imperative and sacred as the duty to avoid injury to their property.
The statutes of Minnesota provide that:
“A public nuisance is a crime against tbe order and economy of the state and consists in unlawfully doing an act, or omitting to perform a duty, which act or omission * * * shall unlawfully interfere with, obstruct, or tend to obstruct, or render dangerous for passage a * * * street, alley or highway.” Eev. Laws Minn. 1905, §§ 4987, 4988.
And the Supreme Court of Minnesota has adjudged that:
“Where the statute, for the protection and benefit of individuals prohibits a person from doing an act or imposes upon him a duty, if he disobeys the prohibition or neglects to perform the duty, he is liable to those for whose protection the statute was enacted for any damages resulting proximately from such disobedience and neglect.” Baxter v. Coughlin, 70 Minn. 1, 4, 72 N. W. 797, 798. .
The duty was imposed upon the city to exercise care to render this highway reasonably safe for travelers, and it blew a whistle within-110 feet of it which made it unsafe for travelers, and which constituted a public nuisance within the express terms and plain meaning of . this statute.
But counsel contend that the city is not liable to pay damages for the injuries inflicted by the whistle, because, in locating it and blowing it, it was exercising one of its governmental powers in the establishment and maintenance of its fire department and fire-alarm system, and this upon the ground that for the acts and omissions of its officers and agents in the exercise of a governmental power of this nature it is, like the state, exempt from civil liability. There is more than one answer to this argument.. In the first place, if the blast of the whistle which caused the injuries had been made in the exercise of the city’s power to protect against fires, it would not have been exempt from liability, because the blowing of the whistle was a public nuisance, and it was not necessary for the city to create or to continue that nuisance in order to rightly exercise its power to establish and maintain a fire department. It could have exercised that power as completely and as beneficially without locating or blowing this whistle daily within 110 feet of this bridge. If the exercise of a legislative power does not necessarily and naturally create a nuisance, but that results from the manner of exercising the power, .the legislative grant is no defense to an action for the damages it causes. Village of Pine City v. Munch, 42 Minn. 342, 44 N. W. 197, 6 L. R. A. 763, Hill v. Mayor, 139 N. Y. 495, 34 N. E. 1090.
A city has two classes of powers, the one legislative, public, in the exercise of which it acts as a political subdivision and delegate of the state and governs its people, the other private, corporate, business, in the exercise of which it acts for the advantage of the inhabitants .of the city and of itself as a legal personality. Eor the acts and omissions of its officers and agents in the exercise of powers of the former class, such as the police power (Wilcox v. City of Rochester, 190 N. Y. 137, 82 N. E. 1119, 17 L. R. A. [N. S.] 741; City of Kansas City
But for damages caused by the wrongful acts and omissions of its officers and agents within the scope of their authority in the exercise of its powers of the latter class, such as its power to build and maintain bridges, streets, and highways, the power to construct and keep in repair sewers (Murphy v. City of Indianapolis, 158 Ind. 338, 63 N. E. 469; Williams v. Town of Greenville, 130 N. C. 93, 40 S. E. 977, 57 L. R. A. 207, 89 Am. St. Rep. 860; Hamlin v. City of Biddeford, 95 Me. 308, 49 Atl. 1100; City of Denver v. Rhodes, 9 Colo. 554, 13 Pac. 729), the power to collect refuse and to care for the dump where it is deposited (City of Denver v. Porter, 126 Fed. 288, 294, 61 C. C. A. 168), the power to construct and operate the draws of bridges (Naumburg v. City of Milwaukee. 146 Fed. 641, 77 C. C. A. 67), and the power to build, maintain, and operate waterworks to furnish water to the city and to its inhabitants for compensation (Wiltse v. City of Red Wing, 99 Minn. 255, 260, 109 N. W. 114; Lynch v. City of Springfield, 174 Mass. 430, 54 N. E. 871), the city is liable to the same extent as a private individual or corporation under like circumstances. The power of a city to construct and operate waterworks is not a political or governmental, but a private or corporate, power, granted and exercised, not to enable it to control its people, but to authorize it to furnish to itself and to its inhabitants water for their private advantage. Illinois Trust & Savings Bank v. City of Arkansas City, 22 C. C. A. 171, 182, 76 Fed. 271, 282, 34 L. R. A. 518; Pike’s Peak Power Co. v. City of Colorado Springs, 44 C. C. A. 333, 342, 105 Fed. 1, 10; Omaha Water Co. v. City of Omaha, 77 C. C. A. 267, 271, 147 Fed. 1, 5, 12 L. R. A. (N. S.) 736.
The argument that the discretion of the city in the construction, location, and operation of its fire-alarm system is not reviewable by the courts has not escaped attention. But if sound it is not material, and hence will not be discussed, because it was not the exercise of that discretion, but the blowing of the whistle by the assistant engineer of the waterworks building, that was the proximate cause of the injuries and death and that is the foundation of these actions. The location and use of the whistle for the fire department, dangerous as it was, would never have caused the death of Nichols and the injury to Irene if the assistant engineer of the waterworks building had not pulled open the valve and sent forth the blast at 5 in the afternoon of that fatal day.
Finally, it is said that the. city is not liable because it had no corporate power to cause this whistle to be blown for the purpose of notifying union men and the employés of the city of the time of day. But it had plenary power to erect, maintain, and operate the waterworks building. It had the power and it was its duty to so use that building and the whistle upon it that it would not inflict any unnecessary injury upon travelers upon the bridge, to prevent and, when it arose, to suppress, the public nuisance of the startling, dangerous 5 o’clock blasts of this whistle upon it, and to exercise ordinary care to keep the bridge reasonably safe for travelers thereon. For damages caused to travelers by the failure to discharge these duties it was liable in these cases, and the evidence of such a failure was so substantial that the refusal of the court below to direct a verdict in its favor was not error.
In the Botzet Case attention is called to the facts' that while the whistle was blown, and the horses were frightened and started to run in the state of Minnesota, Irene was not thrown over the railing of the bridge and was not injured until they had carried her into the state of Wisconsin; that there is a statute of the latter state which limits the amount of recovery from any city, county, town, or village, on account of any defects in a bridge or highway, to $5,000, and that the verdict and judgment in that case were far .in excess of this amount, and in excess of the amount specified in the notice of the claim upon which the action is based which was originally given to the city. But this action was brought in the state of Minnesota, the city committed the wrong on which it is founded in that state, the statute of Wisconsin had no effect beyond the limits of the state of Wiscon
There was no error in the trial of these cases, and the judgments below must be affirmed,
it is so ordered.