169 Iowa 502 | Iowa | 1915
— It is alleged that the defendants maintained and permitted a nuisance and were negligent in the following particulars:
1. In failing to erect, or cause to be erected, over the sidewalk, adjacent to and in front of the wall that was being constructed, a safe and suitable covering of boards, so that pedestrians walking along in front of said building would be protected from injury by falling workmen or material.
2. In requiring and permitting workmen to work on said wall on the 21st day of October, 1909, with the high wind that was prevailing, making it almost impossible for the men to maintain their positions on the work because of such wind.
3. In creating conditions in the street in front of the building which made the street at that point a public nuisance.
4. In failing to place barriers across the sidewalk and from the curb to the building, preventing the use of that portion of the street by pedestrians.
5. In failing to post in a conspicuous place on either side of the south end of said building, and at and between the curb line and the wall, conspicuous signs warning the public of danger in passing along the street in front of said wall.
6. In violating and permitting to be violated the provisions of Section 757 of the Revised Ordinances of Des Moines.
All but the third and sixth grounds were submitted to the jury, as to the construction company. The court withdrew from the jury the question as to the alleged public nuisance, holding that the evidence did not show a nuisance. The defendant city did not object to the ordinance referred to later, but conceded that it was in force at the time plain
The two defendants are sued as alleged joint tort-feasors. Some of the questions involved in the appeal by plaintiff are common to those urged in the construction company’s appeal. We shall endeavor to state the facts at this time as applicable to both appeals, in order to avoid repetition when we take up the appeal of the defendant construction company. There was no evidence introduced for either defendant, except that the defendant city introduced its chief clerk in the department of streets to show that at some time during the construction of the building in question a notice was served upon the contractor to move from the street certain building' material which was close to the ear tracks. The notice was not produced and the date of its service is not shown. Many of the facts were conceded, and there is no substantial dispute in the testimony.
It appears that about the 1st of May, 1909, the defendant, C. L. Gray Construction Company, entered upon the erection and construction of the Des Moines Coliseum, which was erected upon private property abutting the north side of West Locust Street, adjacent to the Des Moines Biver, in the city of Des Moines, Iowa. The south end of the building was built up to the lot line on Locust Street and the building extended north to Grand Avenue. When the construction of the building was begun, barriers were placed across the sidewalk and parking in front of the building, and the public
The superintendent of the construction company, called as a witness by plaintiff, testified: “John MaeVicar called at our office at the building site the week before the Iowa State Fair opened in 1909 and asked me to have the barrier removed so people could pass through on the sidewalk going to the fair, and I told him I would have it done. I do not remember of anything else being said.”
In a later part of his deposition, he uses the expression that he received orders from MaeVicar to have the sidewalk opened up, etc. When this barrier was removed, it was replaced by a similar barrier being placed about four and one-half feet from the sidewalk to the building instead of extending across the sidewalk. The last barrier was a railing three or four feet high constructed of two by four’s, with boards nailed to them. This last barrier was so maintained until the latter part of November. Lumber and other materials were piled in front of the building on the outer edge of the sidewalk. When the position of the barrier was changed, about September first, the south wall of the building had been erected to a height of about twenty to twenty-five feet. On October 21, 1909, the day upon which the deceased, John Holmquist, met with the injuries resulting in his death, the south wall of the building was practically completed. Prior to the day of the death of Holmquist, the building material was hoisted to the workmen from the inside of the. structure.
or platform constructed on the inside or north side of the wall. There were fifteen or sixteen men working on the wall at the time deceased was killed. When the material was
A little before noon on October 21st, William J. Kennedy, one of the workmen engaged on the building, was removing mortar or pointing up the surface of the wall. He was not at the time engaged in handling brick and setting the same in the wall. He was standing on the roof of a part of the building which was low^er than the wall where he was reaching out and up and pointing up the work. There was a jog in the wall, so that the place where Kennedy was reaching to point up the work extended farther south than the place where he was standing.
Several photographs were introduced in evidence. The cross on the one here set out shows the place where Kennedy was standing when he was blown off the roof. This photograph shows the condition of the building but does not show the sidewalk and passageway between the railing and building as well as some of the others.
Kennedy testified:
“I was just reaching — I just finished cutting it (the mortar) all out and I went to straighten up and a heavy wind hit me and threw me off my balance and I went right over the front of the wall. I could not cut off this mortar without reaching and leaning over the wall. At the time I was blown from the building I was standing on the roof, forty-five feet high, on the southwest corner of the roof. I was standing on the southwest corner of the roof and pointing up about five feet. -I was not leaning over the wall; I was reaching out that way (indicating). I was leaning out. I was holding on like this (indicating), holding on to the wall. Just after I had finished cutting off, as I turned to come in, step in, the*510 wind hit me just then. The wind was blowing hard, I should judge about forty miles an hour, and we had to be careful on account of that, and just happened to catch me off my balance.”
It was conceded that the deceased was struck while walking east on the sidewalk on the north side of Locust Street and in front of the building; that he was struck by W. J. Kennedy. It was conceded that deceased was struck and killed by Kennedy falling from the building, having been blown off the same as testified to by him, and falling on Holmquist, injuring him, from which injuries Holmquist died soon thereafter, and on that day. At no time was there a scaffolding constructed outside of the south wall, and at no time was there any covering, or shield, over the sidewalk.
The ordinance before referred to is as follows:
“Sec. 757. Sidewalks. Section 3. No material shall be deposited upon the sidewalk pavement in front of or along a street or alley, whereon any such building is being erected, but the sidewalk pavement shall, at all times, be kept clear for the free and unobstructed use thereof by the public. PROVIDED, it is not intended hereby to prohibit the maintenance of a driveway for the delivery of material across such sidewalk from the curb line to the building site. If the building to be erected is to be more than two stories in height, with walls at or near the sidewalk line, there shall be built over the sidewalk pavement a roof, or shield, of planks, thoroughly supported and constructed, as regards size, strength and safety, to the satisfaction of the Board of Public Works, and be maintained as long-as they shall deem necessary, sufficient to protect any persons, passing along such sidewalk, from injury by falling material or debris. If there shall be excavations along or near the sidewalk pavement, a substantial railing shall be erected and maintained along such sidewalk so long as such excavations continue to exist, for the proper protection of parties passing along the sidewalk pavement.”
As to the second ground of negligence alleged, the city had no control over the workmen as to whether they should work when a high wind was blowing. They were in the employ and under the control of private individuals, engaged in the erection of a private building upon private property.
‘ ‘ The council shall have and possess, and the council and its members shall exercise all executive, legislative and judi*513 cial powers and duties now had, possessed and exercised by the mayor, city council, board of public works, park commissioners, board of police and fire commissioners, board of waterworks trustees, board of library trustees, solicitor, assessor, treasurer, auditor, city engineer, and other executive and administrative officers in cities of the first class and cities acting under special charter. The executive and administrative powers, authority and duties in such cities shall be distributed into and among five departments, as follows: . . . 4. Department of streets and public improvements. . . . The council shall determine the powers and duties to be performed by, and assign them to the proper department; shall prescribe the powers and duties of officers and employees; may assign particular officers and employees to one or more of the departments; may require an officer or employee to perform duties in two or more departments; and may make such other rules and regulations as may be necessary and proper for the efficient and economical conduct of the business of the city.”
It is conceded that MacYicar was a member of the city council, and, under an ordinance passed by the city council, he was assigned to the duties of superintendent of the department of streets and public improvements. It is not shown in the evidence that there was any ordinance defining the powers and duties of the councilmen, and there is no showing that they had any powers other than those enumerated in the statute itself. We have some doubt as to whether one member of the council has the same power as the combined body in all cases, as we understand counsel for plaintiff to claim. But it is not necessary to now determine that and consider all the provisions of the act bearing on this question because, in our opinion, the request made by MacYicar, or the so-called order to remove the barriers, was not the proximate cause of the decedent’s injury and death. The injury probably would not hhve happened but for the wind. It
The ordinance before set out is relied upon by plaintiff to some extent, as against the city, as a circumstance tending to show the necessity for a barrier, or railing. Under the ordinance, no railing was required unless there were excavations, and there were no excavations at the place in question. Furthermore, while the so-called order does not relate to the roof or shield over the sidewalk, the ordinance gives the city authorities a discretion as to how long it is necessary to maintain such covering. The purpose of such covering, as stated in the ordinance, is to protect persons passing along the sidewalk from injury by falling material or debris. At the time of the injury to plaintiff’s decedent the building was substantially completed; no bricks were being laid, and there was but little, if any, danger of injury from such material or debris. And the record does not show that the city had any notice or knowledge, either actual or implied, of the more or less perilous position of the employees of the construction company in leaning out and pointing up or finishing the work; that is, as to the conditions as they existed at that time. We think the act of MaeVicar in requesting, or ordering, the removal of the barriers was not under the circumstances a negligent act on the part of the city, nor did it create a nuisance.
2. As stated, plaintiff claims that the nuisance was created by the city by this order of the superintendent of streets.
3. Plaintiff relies upon the holdings of this court in Duffy v. City of Dubuque, 63 Iowa 171; Bliven v. Sioux City, 85 Iowa 346; Cason v. Ottumwa, 102 Iowa 99; Wheeler v. Fort Dodge, 131 Iowa 566; and the sections of the statute before referred to. But these were cases where there was an improper use of the street by obstructions, and the like, such as a section of roofing, billboards, and the like, and in one ease a sliding wire performance, which were, with.the knowledge of the city, permitted. These were cases where the city had not performed its obligation to the public in keeping its streets free from nuisances of such character as were well calculated to result in mishap and to injure pedestrians in the street. "We. think the cases cited are not applicable here because plaintiff’s contention ignores the right of a property owner to a reasonable use of the street for building operations such as were being carried on in the instant case. Meggmson v. Maine & Sons Co., 160 Iowa 541, and cases cited.
In determining whether the city had performed its duty under the statute, the duty enjoined upon it by Sec. 753 of the Code must be considered in the light of the right of the landowner to so use the street, in view of such lawful use by the landowner of a portion of the sidewalk and street. The city had the right to assume that the owners of buildings abutting the street, or the construction company, would exercise a proper degree of care to prevent injury to travelers upon the street. Parmenter v. City of Marion, 113 Iowa 297.
The appellee' relies on the case last cited. The case is, in many respects, like the instant ease, and we think is controlling here. In that case it was held that a verdict should
“1. That the platform itself was neither a nuisance nor an obstruction.
“2. If properly used, as defendant had the right to suppose it would be, its use did not make it a nuisance.
“3. If improperly used in such a manner as to make it a nuisance, the city was not responsible until it had, or should h'aVe lfá'd; ncffacte' or knowledge' of its improper use.
In the instant ease, while, doubtless, the city knew, or should have known, of the building operations of its co-de-. fendant, in a general way, it is not shown that the situation as it was at the time of the injury to Holmquist in regard to men! reaching out and up and pointing the work in a high wind, or otherwise, had existed before or that the city had any notice thereof. The act of permitting or requiring men to so work under such conditions, if negligent, as the' jury must have found as to the defendant, the construction company, was the negligence of the construction company alone.
We conclude that, as to the city, the motion to direct a verdict was rightly sustained, and the ruling and judgment as to the city are affirmed.
While it is true the wall had been practically completed, there was some work to be done upon the wall in pointing up the work. It does not appear from the evidence whether there was to be any other work of any consequence on the outside of the wall. In striking off the mortar, or pointing up the' wall, Kennedy stood on the roof, near the edge of the wall, reaching out and up, with his hand holding a higher portion of the wall, and reached around so that his body, to some extent, projected out into the street and over a part of the sidewalk below. He was in such a position as would have caused him to fall on the sidewalk if he were to lose his hold or balance and to fall. As he says, he was blown from the roof. The accident is an unusual one, but the circumstances under which Kennedy was working, where any misstep on his part, or a loosening of his hold, a gust of wind, or any accident might cause him to lose his balance and fall upon the sidewalk below, made his work one of a perilous nature', and Kennedy himself took risks. There was some danger that he might fall to the sidewalk below. There was also hazard to anyone who might be passing along the street below. There is no way that the public could know of the position in which the workmen were placed. This defendant should have known. In the' progress of the work of defendant in the construction of the building, an employee is required to place himself in a hazardous or perilous position over a
One of the instructions given by the court is in substantially the following form: That defendant was required to use ordinary care to avoid accidents to travelers passing along the sidewalk, but was not bound to anticipate unusual and unforeseen accidents which a reasonably prudent person, with knowledge of all the facts which defendant knew, of in the exercise of ordinary care should have known at that time, would not have foreseen or provided against; and that, if the jury should find from the evidence that the blowing of the witness Kennedy from the building, under all the circumstances there existing, of which defendant as a reasonably prudent person knew, or should have known, was an unusual and unforeseen occurrence, and such as reasonable and ordinary care, with such knowledge as the defendant had, or should have had, in regard to the conditions and circumstances then and there existing, could not reasonably have prevented or provided against, then and in such case you should find that the defendant was not guilty of negligence m failing to build a shed or provide other protection which would have prevented Kennedy from falling upon deceased, etc. This instruction is objectionable in some respects, but it is favorable to defendant. It is the law of the case because defendant does not complain of it, and plaintiff has not appealed as to this defendant.
This defendant knew the conditions existing at the time, or should have known, but it is not shown that MacYicar, or any officer of the city, had any knowledge' or notice of the actual conditions. When the order was made, defendant did not inform MacYicar that work was to be done such as Kennedy was doing. This defendant made no protest or objec
Furthermore, conceding, for the sake of argument, that the order of MacYicar was an improper one, it would not relieve this defendant of its duty to exercise the care required for the protection of persons below.
The right of defendant to use the street for building operations, and some of the other questions argued, have been before referred to. We have noticed all points that seem to be controlling, and we conclude that no prejudicial error appears. The judgment as to this defendant is affirmed.
Affirmed on both, appeals.