185 Iowa 600 | Iowa | 1919
On July 23, 1916, the decedent, Charles Jones, a hoy seven years of age, was killed by collision with an automobile on Central Avenue in the city of Fort Dodge. While the boy was passing eastward along such avenue, he was run down unjustifiably by the driver of the automobile in question, and sustained injuries from which he immediately died. The driver of the automobile is not made a defendant herein. So far as appears from the record, he was never apprehended. The defendants named are the city of Fort Dodge, J. B. Butler, the owner of property abutting upon said street, and Zitterell, who was bound to Butler by contract, either as an employee or as a contractor. The alleged liability of these defendants is predicated by the plaintiff upon the fact that Butler was engaged, through Zitterell, in the repair of a building abutting upon the street, and for such purpose had cut off the sidewalk from travel, and had thereby driven the pedestrian travel into the street between the curb lines, and that this was an unlawful obstruction of the street, and created a nuisance, and that the defendant city was negligent in permitting it. The boy was walking in the street opposite the Butler front, at the time the automobile ran over him. The defendants filed separate answers, each denying liability. The defendant city denied the alleged negligence, and further denied that the acts charged against it, even if wrongful, were a proximate cause of the accident.
To go into further detail, it appears that, in February, 1916, the Butler building had been partially destroyed by fire. Only its walls were left standing, and these were a
If the city is not liable, it necessarily follows that Butler is not; because there is no claim of any special and independent negligence on his part. The only claim is that he participated with the city in its negligence in unlawfully