231 N.W. 326 | Iowa | 1930
This action was brought in behalf of Hilbert Reinart, by John Reinart, his next friend; but, for convenience, the injured boy will be referred to as "plaintiff." He was about 16 years of age at the time of the accident. Defendant is a municipal corporation, under the laws of the state of Iowa.
About 9 o'clock P.M., July 3, 1929, the plaintiff was walking on a sidewalk in defendant town on the east side of Main Street, at or near what is known as the "fire station," when an "explosive exploded" on said sidewalk at said place, causing plaintiff's face to be burned, and one of his eyes injured, so as to totally or partially destroy the sight. This caused plaintiff pain and suffering, loss of time, and permanent injury. Plaintiff alleges that the town of Manning had knowledge, or should have had knowledge, that said sidewalk was being used continuously, day and night, upon the 2d and 3d of July, 1929, as a place for exploding powder, giant firecrackers, and bombs; that the city failed to keep its sidewalks free and safe from nuisance; that plaintiff in no way contributed to his injury; that the defendant neglected to regulate or control said practice of exploding dangerous explosives, and failed to warn those using the streets of the constant danger, or "in not withdrawing said streets and sidewalks from public use;" and that these matters constituted negligence on the part of the defendant.
The above matters are set out in the petition, consisting of two counts, to which petition a demurrer was filed and sustained. Summarized, the fact situation is about as follows:
On the evening of July 3, 1929, the plaintiff was traveling *666 on the sidewalk on the streets of the town of Manning, and some unknown persons were discharging giant firecrackers, bombs, and possibly other fireworks on said sidewalk. It is not alleged that these unknown persons were officers of the town, but it is alleged that some officers of the town not described or named "knew, or ought to have known, of this use of the street." One of these bombs or firecrackers was discharged, injuring the plaintiff, and it is sought to hold the town responsible therefor.
It might be said, in passing, that, if we are able to interpret the plaintiff's petition, the first count seeks to hold the defendant responsible on the ground of nuisance, and the second, on the ground of negligence.
The exuberance of our people, both young and old, in celebrating Independence Day has somewhat abated, as the years have gone by; but it has been regarded, and has ever been looked upon, as the right and privilege of the American citizen to thus celebrate. This question is not new, and has been many times before the courts. A review of the cases shows that in some instances recovery has been sought on the basis of nuisance, and in others on the ground of negligence; yet the general conclusion reached under either theory has been a quite uniform line of holdings that, in the absence of a legal, affirmative act on the part of the municipality, authorizing such use of the streets, there is no liability. A critical review of the authorities is scarcely deemed necessary, in the light of the holdings of this court. It might be said, however, that a reference to the following cases from our sister jurisdictions confirms the position taken by this court: Hill v. Board of Aldermen,
This court had this question before it in three cases, the first being Ball v. Town of Woodbine,
It is insisted by appellant, however, that the Ball case was, in effect, overruled by the case of Wheeler v. City of FortDodge, *667
"The conclusion as here reached is in no manner inconsistent with the decision in Ball v. Woodbine,
In the case of Remy v. City of Shenandoah,
In the case of Heller v. Town of Portsmouth,
Having so thoroughly committed ourselves to this doctrine, the court is not now disposed to recede therefrom; and in fact we see no logical reason for such recession. We are in line with the vast weight of authority, and we see no reason why the American citizen should be disturbed from evidencing his patriotism on such occasions by methods so currently in use since the early days of the history of this republic.
Our attention has been called to many cases in the elaborate and well prepared briefs of both parties, which have been very helpful to us in reaching this conclusion. — Affirmed.
MORLING, C.J., and EVANS, STEVENS, FAVILLE, De GRAFF, KINDIG, WAGNER, and GRIMM, JJ., concur. *668