Bliven v. City of Sioux City

85 Iowa 346

• Court: Supreme Court of Iowa
• Decided: July 1, 1892
• Status: Published

Opinion

Robinson, C. J.

A wooden structure ninety-two feet in length, and about twelve feet in height, made by nailing boards to ^upright pieces of timber, and known as a ‘ ‘bill-board,” fell upon the plaintiff while she was on a sidewalk in a street of the defendant, inflicting the injuries for which she seeks to recover! The bill-board was wholly in the ’ street between the sidewalk and the lots, about three feet from the latter* and half that distance from the former. There was evidence which tended to show that the bill-board was constructed several years before the accident; that it was not properly constructed; that some of its timbers had decayed; and that it was unsafe, and had been in. that condition so long that the defendant should be charged with knowledge of the fact that it was unsafe before the accident occurred.

I. One of the defenses pleaded is that the action is barred by the statute applicable to such cases, for the reason that the accident occurred more than six -months before the action was brought, and no notice of the alleged injuries was served upon tlie defendant within ninety days from the time they were received. It is admitted that the facts as to the time of the accident and service of notice are as pleaded. Section 1, chapter 25, Acts of the Twenty-second General Assembly, is as follows: “Section 1. That in all cases of personal injury resulting from defective streets or sidewalks, or from any cause originating in the. neglect or failure of any municipal corporation, or its officers, to perform their duties in constructing or maintaining streets or sidewalks, no suit shall be brought against the corporation after six months from, the time of the injury, unless written notice specifying the place and circumstances of the injury shall have been served upon such municipal corporation within ninety days after the injury.” The appellee contends that the bill-board did not constitute a defect in the street or sidewalk, within the meaning of this statute.

In McArthur v. Saginaw, 25 N. W. Rep. (Mich.) 313, cited by the appellee, it was held that the liability of the city for injuries suffered in its streets was statutory, and was confined to such defects as arose from their being out of repair, and it did not cover objects forming no part of the streets, and not affecting their condition as ways kept in repair. It was also held that it was not necessary for the city to keep the full width of a street open for travel, and that where a sufficient portion of it was kept in proper condition for use the city was not liable for damages resulting to the driver of a horse from lumber piled at the side. In Hixon v. Lowell, 13 Gray, 59, it was held that the city was not liable for injury to a pedestrian on a sidewalk which it was required to keep in repair, caused by ice and snow which fell from an overhanging roof. In Macomber v. Taunton, 100 Mass. 255, it was held that the city was not liable for injuries which were caused by a hitching post which stood in the street on the outer edge of the sidewalk. Other eases of a somewhat similar character are cited by the appellee, but, in our opinion, none of them support her theory of the statute.

it is the duty of a city to keep its streets open and in repair, and free from nuisance. Code sec. 527. It is also its duty to maintain its sidewalks in a reasonably safe condition. Thomas v. Town of Brooklyn, 58 Iowa, 438, 440; Beazan v. Mason City, 58 Iowa, 233. This duty extends, not merely to the surface of the street' or walk, but to those things within its control which endanger the safety of those using the street or walk properly. It may not be the duty of a city to open to public travel a given street to its full width, and it may not be its duty to construct a sidewalk thereon; but when it has assumed that obligation, it should make the street and the walk reasonably safe for the uses for which they are intended. A “defect” is defined to be a want or ‘ ‘ absence of something necessary for completeness or perfection.” Webster’s dictionary. It also includes the idea of a fault or want of perfection. In the statutory sense a ■ street or sidewalk is defective when it is not in a reasonably safe condition for the use for which it is intended. That condition may be due to improper construction, to poor materials, or other causes. It may be due to the presence of something which is a menace to the safety of the users of the way, as well as to imperfect construction or the absence of needed labor or material. In Drake v. Lowell, 13 Metc. (Mass.) 292, the city was held to be liable for damage caused by the fall of an awning which extended over the sidewalk, although the walk under the awning was in good condition. The statutory liability of the defendant in that case was much like that of the defendant in this. In Jones v. Boston, 104 Mass. 75, the case last cited and other eases were reviewed, and it was said that a danger from the insecure condition of the awning may reasonably be treated as arising from a defective or unsafe condition of the sidewalk. In this case the bill-board was not a part of the street nor of the sidewalk, but it' was in the street, and subject to the control of the defendant. It made the sidewalk near it unsafe, and caused the injuries in ques-tiom It is immaterial, for the purposes of this, case, whether the defect be said to have been in the street or sidewalk, or both, although as the bill-board made the walk unsafe, that may be said to have been ‘ ‘defective,’ ’ within the meaning of the statute. This conclusion is strengthened by the eyident purpose of the statute. That was designed to give the municipal corporation such notice of injuries for which it is claimed to be liable as will enable it to investigate the injuries and the circumstances under which they were received, while witnesses who knew and remember the facts can be found, to the end that fraud may be prevented and justice be done. It would be as important to the corporation to have notice of an injury which resulted from the falling of boards upon a sidewalk as though it resulted from a broken or missing board. There is no reason to presume that the statute was intended to exclude one case and include the other.

In our opinion, the action is barred by the statute, and judgment must be rendered in favor of defendant. Reversed.