150 Iowa 403 | Iowa | 1911
The city of Ottumwa had an ordinance which made it unlawful for any one to use any barbed wire, either in the construction or maintenance of any fence, inclosing in whole or in part any lot within the corporate limits of said city. In the year 1907 defendant was the owner of lot one hundred and sixty, which was within the limits of the city, and, for the purpose of keeping teams from driving over this lot, he hung a single strand of barbed wire between two electric light poles some one hundred and fifty-two feet apart at the rear of his lot. This was an insid$ lot, and there was no alley at the rear thereof. The strand of wire was three or four feet north of the south boundary line of the .lot,-, and, as we have said; was placed there to keep coal teams from driving
Plaintiff’s counsel very frankly admit that, if this be an action of nuisance, no recovery can be had of defendant for the reason that he was not maintaining the same when the accident happened. His insistence is that his action is for a torf (in other words, for negligence), and that defendant is responsible for that negligence both at common law and because of his violation of the ordinance of • the city. ' : ■ ;
2. Same: care of premises: duty of owner.oame: care of Suty'of5' owner. It is difficult at times to distinguish between actions of nuisance and actions bottomed on negligence; but in either case there must be a breach of some duty on the part of the defendant before an action will lie against him. Thus one is under no duty to keep premises jn a safe condition for the visits of trespassers. But, if he expressly or by implication invites others to come upon his premises, it is his duty to be reasonably sure that he is not inviting them into a place of danger, and to this end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit. Wagner v. Railroad, 124 Iowa, 462; Dalin v. Railway Co., 188 Mass. 344 (74 N. E. 597).
It is for this reason that plaintiff admits defendant can not be held for nuisance. But he contends that an action for negligence will lie upon the same state of facts. Here again, however, there must be found a duty upon the part of the defendant to the person who suffered the injury. Remembering that the fence in question was at the rear of the lot which defendant formerly owned and was ujion
The case should be distinguished from- one where a barbed wire fence is erected along a public street or highway near where all people have a right to pass. In such cases it may possibly be that the person who erects the fence may be liable to a passer-by who is injured, although the person building the fence may have disposed of the property. Such a case would be much stronger than the one here presented; but we do not say that- even in such an one recovery might be had from the original wrongdoer. Our conclusions find support in the following, among other cases: Tel. Co. v. Beatty, 63 Ark. 65 (37 S. W. 570) ; Smith v. Clarke Hardware Co., 100 Ga. 163 (28 S. E. 73, 39 L. R. A. 607) ; Daugherty v. Herzog, 145 Ind. 255 (44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204); Woodruff v. Bowen, 136 Ind. 431 (34 N. E. 1113, 22 L. R. A. 198; Smith v. Trimble, 111 Ky. 861 (64 S. W. 915) ; Boardman v. Creighton, 95 Me. 154 (49 Atl. 663) ; Cochran v. Sess, 168 N. Y. 372 (61 N. E. 639); Paolino v. McKendall, 24 R. I. 432 (53 Atl. 268, 60 L. R. A. 133, 96 Am. St. Rep. 736) ; Uthermohlen v. Bogg’s Run Co., 50 W. Va. 457 (40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884).
Several barbed wire cases are to be found in the books;
The judgment must be, and it is, affirmed.