95 Kan. 787 | Kan. | 1915
The opinion of the court was delivered by
The city permitted a merry-go-round to be located for several days upon the intersection of two of the principal streets. It was run by an engine which
While the charge was given that it was the duty of the city to keep its streets open for public travel, and if it knowingly permitted them to remain obstructed, this fact alone would constitute negligence on its part, still it seems quite plain that the case was tried largely on the theory that the plaintiff was merely a passer-by or pedestrian, governed by the ordinary rules of one who stumbles over an obstacle in the street.
It is perfectly plain that he knew before starting to the store that the street was thus occupied, and he knew, as every one else familiar with the situation
Another instruction complained of was that if the plaintiff knew that the engine was defective or by the exercise of ordinary care should have known that the accident might happen then the act of holding the lantern would constitute negligence on his part.
The undisputed testimony is that the swing was in operation, which necessarily implies that the engine must have been running, and the plaintiff testified without dispute that he knew nothing about an engine, and there is nothing shown in the evidence that any one had any reason to foresee that the particular accident might happen which did happen and which might as naturally have injured another of the bystanders or the engineer himself as the plaintiff had he or such others been in the line of the glass sent flying by the explosion. Attractions of the character in question are purposely designed to entertain and collect crowds of persons, and the fact that the street was taken up with the swing, engine, cable, tank, fuel, guy ropes and baby rack did not bar the plaintiff from the right to pass over such street, and the trial court properly charged that such obstruction was a nuisance and leaving it in the public street was negligence of an aggravated character. (Farrell v. City of Dubuque, 129 Iowa, 447, 105 N. W. 696; Wheeler v. City of Ft. Dodge, 131 Iowa, 566, 108 N. W. 1057, 9 L. R. A., n. s., 146; Moore v. City of Bloomington, 51 Ind. App. 145, 95 N. E. 374; Note, 20 L. R. A., n. s., 513-769; Little, Adm’r, v. The City of Madison, 42 Wis. 643, 24 Am. Rep. 435; Van Cleef v.
“The power to authorize obstructions may be delegated to municipal corporations, but, in the absence of a provision in its charter or some general law upon the subject, a municipality has no more right to license or maintain a nuisance than an individual would have, and for a nuisance maintained upon its own property a city is liable the same as an individual would be. Even where a city is given exclusive power over its streets, such power must be exercised for the good of the general public, and the city can not authorize obstructions in its streets for merely private purposes.” (2 Elliott, Roads and Streets, 3d ed., § 836.)
It was the duty of the city to keep its streets in a safe condition for use in the usual mode by travelers. (City of Eudora v. Miller, 30 Kan. 494, 2 Pac. 685; Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822; Osage City v. Larkin, 40 Kan. 206, 19 Pac. 658; Tepfer v. City of Wichita, 90 Kan. 718, 136 Pac. 317; Spencer v. Kansas City, 92 Kan. 161, 139 Pac. 1029.)
A member of the committee appointed by the commercial club testified that it was stated to the mayor that “the reason they wanted to set the swing up there was they wanted it to be as handy to the people and public as they could get it so as to get as many to ride as they could for the benefit of the commercial club; that the club was to receive a part of the earnings of the swing.” So here was a nuisance permitted in the street as a matter of profit, in part, to a local enterprise, and by thus consenting to its location the city was by act, if not by word, extending an invitation to everybody to patronize the attraction. Having thus diverted the street from its lawful use to the unlawful one of exploiting an enterprise more or less dangerous, the motive power being furnished by a steam engine connected by cable with the swing, the city is not in a posi
The nuisance having been placed in the street with its knowledge and consent the city became liable to one injured thereby unless the person so injured was sufficiently guilty of carelessness to be himself held responsible for the injury. The question of contributory negligence in this case does not depend upon the mere fact that the plaintiff could have gone to the store by using some other route, or that he stopped voluntarily as he came near the engine, or that he knew the obstruction was in the street and could have avoided it, or that he held the lantern for the engineer, but it depends upon the question whether under the circumstances shown the plaintiff used such caution or prudence as an ordinarily careful person would have used under like circumstances and conditions.
Upon the principles thus indicated the plaintiff had a right to have his case tried, and having been denied such right he is entitled to a reversal of the judgment against him and to a new trial.
In view of the many instances of similar attractions being permitted upon the streets of cities it is not at all strange that the defendant in this case gave its assent to the location of the merry-go-round at the intersection of its two principal streets, but the frequency of such instances in no wise tends to their legality. As instances of expressions used by other courts touching such matters the following may be
“It is clear that when the city allowed these structures to remain in the street with the knowledge that they had been unlawfully placed there, and that they were dangerous, it rendered itself liable to any one receiving injuries by reason thereof. (Duffy v. City of Dubuque, 63 Iowa, 171, 176, 18 N. W. 900; Bliven v. City of Sioux City, 85 Iowa, 346, 52 N. W. 246; Carson v. City of Ottumwa, 102 Iowa, 99, 71 N. W. 192; Wells v. City of Brooklyn, 41 N. Y. Supp. 143; Griffin v. Boston, 182 Mass. 409, 65 N. E, 811; Richmond v. Smith, 101 Va. 161, 43 S. E. 345.)” (p. 452.)
In Richmond v. Smith, supra, a case of an injury from an obstruction erected in a street by a carnival association, it was said, speaking of the city:
“It has no other or different control of the streets than is prescribed in the charter or the general statutes of the State. Having no legislative authority to grant the use of the streets for such purpose, the ordinance was a nullity, and in no way affects the plaintiff’s right to recover in this case. . . . It is also an established general rule that any unauthorized obstruction which unnecessarily impedes or incommodes the lawful use of a highway is a public nuisance at common law. . . . Cities have no power, without legislative authority, to authorize obstructions, in the streets, that are condemned as nuisances. If, under the inspiration of modern ideas, it is deemed necessary to the public weal that the streets of cities should be blocked by such obstructions and exhibitions as we are considering, the way is open to accomplish it. Let the Legislature be applied to for the requisite authority. The Courts cannot grant it, nor can they approve the assumption of such a power, where no lawful authority for its exercise is shown to exist.” (pp. 165, 166, 170.)
In Wheeler v. City of Ft. Dodge, 131 Iowa, 566, 108 N. W. 1057, 9 L. R. A., n. s., 146, at the close of the opinion the court, quoting from a New York decision
“ ‘When it is understood that such license had not only-no effect in the way of legalizing an obstruction, but that it simply makes the city a partner in the maintenance of a public nuisance, . . . such knowledge may . . . tend in some degree to the protection of the public in the lawful use of its own highways.’ ” (p. 583.)
The judgment is reversed and the cause remanded for further proceedings in accordance herewith.