29 Iowa 210 | Iowa | 1870
If a perfect deluge of instructions could by possibility drift a case into a sea of error, plaintiff
These instructions cover twenty-nine pages, and are found, almost entire, four times in this record, which is otherwise quite voluminous. And notwithstanding they are copied thus often, it requires the utmost care and scrutiny to determine what instructions were given in chief, what at the instance of the parties, or which party excepted. This difficulty, too, is increased from the fact that the defendants have interests somewhat antagonistic; and whether a particular instruction was asked at the instance of the city (the appellant) or whether the city or some other defendant, excepted to the action of the court in giving and refusing instructions, it si next to impossible to tell. Where the responsibility rests for this, we do not know, nor is it, perhaps, material to determine. If, however, we should be concluded, by the state of the record, from reaching all the points made by counsel, or if they should be misapprehended, let the foregoing suggestions furnish the explanation.
The court below held, upon the first proposition, that the city, by its charter, was vested with control over its streets and alleys, having power to cause sidewalks to be paved, and that these were accompanied with the obligation to keep them in a reasonable state of repair, so as to be reasonably safe for passengers, whether with vehicles or on foot; and if, as a result of neglect in this respect, any one was injured without fault, he might recover. But for obstructions or injuries done by an individual the city would not be liable, until it has had notice and a reasonable time given to remove the obstructions or repair the injury. The appellant maintains that the powers of the city are not so absolute over the sidewalks as over the crossing ways or streets proper ; that the exercise of the authority given, as applied to sidewalks, certainly is discretionary ; that no imperative duty is imposed, and the city may hence, at will, make or omit these repairs. In these views we cannot concur.
The amended charter of the city, following almost literally the special charters granted to all cities before that time in the state, gives to the city power “to declare what shall be a nuisance, and to prevent, remove or abate the same, * * * to open, abolish, alter, widen, extend, establish, grade, pave or otherwise improve and keep in repair, streets, avenues, lanes, and alleys (§ 13, amendment to charter, laws of 1857, p. 115), and then by the original charter (1853 pp. 112, 115, §§ 24, 42, 4 and 5) the council are given power to appoint a street commissioner; are given the control of the streets and alleys, with the power to cause sidewalks to be paved, requiring the owners to do the same, and, in case of neg
With this provision in view, keeping in mind that this accident occurred upon the principal .street in this city, and that the sidewalk had been paved either by the city or under its directions, as provided by the statute, there can remain no question as to the duty, not at its mere discretion, but the absolute duty, of the city to see to these repairs. A statement of the rule, as applied to a case like that before us, perhaps as clear as anywhere, will be found in 4 Wal. 446 (Supervisors v. U S.), to the effect, that when power is given to a public officer, the language used, though permissive in form, is in fact peremptory whenever the public interest or individual rights call for its exercise. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. In all such cases, the legislative intent, and this is the test, “was not to devolve a mere discretion, but to impose a positive and absolute duty.”
Not that it is to be understood from this that the council is bound to pave all sidewalks, or bring to a proper grade and passable condition all streets; but, when the improvement is undertaken, as for instance a sidewalk paved, the right or power to keep it in repair imposes the duty. If authorities are to be found in conflict with this view, they have escaped our notice.
Upon the subject of notice, it was held that this might be inferred from the notoriety of the defect or danger, from its continuation for such a length of time as to lead to the presumption that the proper officers did in fact know, or with proper diligence and care might have
Affirmed.