Hensley v. Incorporated Town of Gowrie , 203 Iowa 388 ( 1927 )

This case was tried in the district court before our pronouncement in Norman v. City of Chariton, 201 Iowa 279. The question now presented to us is whether our holding in the Norman case is decisive of this appeal. 1. MUNICIPAL The facts of this case, briefly stated, are: The CORPORA- accident in question occurred on July 4, 1924. TIONS: The plaintiff was a boy 9 years of age, weighing torts: about 65 pounds. The defendant city had for many governmental years maintained a public park. In 1905, a powers and fountain was erected therein, and this had been functions: in use up to the time of the accident. This non-liabi- fountain comprised a ground bowl, circular in lity for form, and 10 feet in diameter. Its circular wall negligence. was 11 inches thick and 16 inches high. In the center of this ground bowl was constructed a cement base, up to a level with the outer wall, and having a diameter of 19 inches. On this center base an iron fountain was set. This was 12 inches wide at the base and 56 inches in height. From underground up through the cement base and through the iron fountain extended a one-inch galvanized water pipe. This was fastened with a burr at the top, and served to hold the fountain in place. At the top of this iron fountain was an iron bowl 12 inches in diameter; and beneath that another iron bowl 25 inches in diameter. The water was discharged from the pipe into the upper bowl; the second bowl and the ground bowl were filled by overflow from above. On the date in question, the plaintiff and a companion, Cecil Bowers, were playing about the fountain. The two boys were engaged in a chase on the outer wall of the ground bowl. The plaintiff jumped across from the outside wall to the center base, upon which the fountain rested. In his jump he grabbed the fountain, subjecting it to his momentum. The water pipe broke, and the fountain fell. As a result of the fall, plaintiff was severely injured. The plaintiff described the method of the accident as follows:

"We were playing tag, and I ran around there, and I jumped on that thing, and it did not go over, and then I jumped on it again, and it did go over. I was running around, and Cecil was chasing me, and I grabbed hold of the bowl and swung my feet clear from the cement. When I swung my feet clear from the outside cement, I put my feet down at the bottom there, — the base, — that the fountain rests on, then I jumped over back to the cement again."

Cecil Bowers testified as follows:

"When we got to the fountain, we got up on the round bowl, — that flat piece, — and I tried to catch Bernard. We were playing there about 15 minutes before Bernard got hurt. * * * Bernard and I were playing tag. We were running around up on that flat piece on the bowl, and he jumped across; and the first time he jumped, the tower went that way, — that middle part went over just a little ways; and the second time he jumped, it went over with him, and he came right down on the edge of the bowl. He started running around the outside of the bowl ahead of me. When I caught up, he jumped over onto the middle piece. The first time, he caught the middle piece about the middle; then he jumped back on the outside again, and then he started running around, and I chased him. He jumped too quick for me to catch him, and the second time he jumped over onto the middle, the bowl came over on him."

The park was used as a place of general recreation by the general public, including children, and contained conveniences for the play of children, such as teeter boards, swings, etc. The fountain was first erected in 1905. In 1922 it was reconstructed, at which time the old pipe was replaced with a new one. The plaintiff introduced evidence that the usual and ordinary construction of such a fountain included a firmer fastening of the fountain to its base than the water pipe afforded. The witness Pray, by whom such fact was proven, testified also as follows:

"It would be almost impossible to break the pipe, pulling one foot from the junction; and two feet, you could break it off ifyou pulled awful hard. It is a fact that, unless some heavyoutside pressure is applied near the top of the fountain, with afountain such as this at Gowrie, it would stand there until thebase decayed away."

It is not claimed that there ever had been any breakage of the pipe before, or that the fountain was dangerous in any other sense than the insufficient strength of the pipe. In the Norman case we held that the maintenance of a public park by the city is the exercise of a governmental function, and that the city is not liable in damages for the negligence of its officers or employees engaged in such maintenance. This holding was reaffirmed in principle in Harris v. City of Des Moines, 202 Iowa 53. It would serve no useful purpose to repeat the discussion contained in the cited cases. Sufficient to say that, in our judgment, the Norman case has the support of the great and increasing weight of authority. For very recent discussions of the question involved, see Scibilia v. Philadelphia, 279 Pa. St. 549 (32 A.L.R. 981); Gensch v. City of Milwaukee, 179 Wis. 95 (190 N.W. 843) Heino v. City of Grand Rapids, 202 Mich. 363 (168 N.W. 512).

It is urged by the appellee that our holding in the Norman case, if held applicable to the instant case, would run counter to our holding in Woodard v. City of Des Moines, 182 Iowa 1102. But it must be noted that in the Woodard case the question of governmental function was not raised at all, and that the discussion of the opinion was not directed thereto. In that case the city had maintained a traveled way for many years, extending from Ninth Street to a railway station, and it had constructed and was maintaining steps for the use of pedestrians upon such traveled way. What was held was that the duty of the city with reference to such traveled way maintained by it was of the same character as was imposed upon it in relation to its streets and alleys. It is to be conceded that there is language contained in the discussion which wholly ignores the distinction between the governmental and the ministerial functions of the city, and in that sense it might be deemed inconsistent with our holding in the Norman case.

Appellee relies also upon certain language contained in the opinion in Wheeler v. City of Fort Dodge, 131 Iowa 566. Here again the question of governmental function was neither raised nor considered. The facts presented involved the creation of a very dangerous nuisance above the street. This was the "slide-for-life" case, wherein a wire had been extended across the street for the purpose of an acrobatic performance above the street. The acrobat fell, and seriously injured a pedestrian, who was lawfully upon the street. We held the city liable for the acts of its officials in permitting and even creating a manifest nuisance upon its public street. The language used in the discussion of such question is to be regarded as in the nature of dictum, when it is sought to apply it to questions which were not under consideration in the case wherein the language was used.

It is also urged by appellee that the question of liability is governed by Section 753 of the Code of 1897. This section provides as follows:

"They shall have the care, supervision and control of all public highways, streets, avenues, alleys, public squares and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances."

The argument is that the fountain involved in the instant case was a nuisance, and was therefore maintained in violation of Section 753. If we assume, without so holding, that this section is inclusive of parks, yet it must be said that 2. MUNICIPAL the fountain in question was not a nuisance, in CORPORA- any legal sense. The only reason presented by TIONS: use this record for saying that this fountain had and any of the qualities of a dangerous regulation instrumentality was the fact that this accident of public happened. It was not erected for the purpose to places: which it was subjected by the lad. In its nuisance: construction it was isolated from just such essential contact. It was surrounded by moat and trench elements. and water. It had no drawbridge. As constructed, it was adapted to all the functions for which it was erected. For twenty years it had performed such function without menace to anyone. It was no more dangerous than a tree would be, from the breaking limb of which some daring boy might fall. Any material object, however harmless or inert, can become a circumstance in an accident. This fact alone is insufficient to classify it as a dangerous instrumentality. To be such, there must be something in its nature and in its relation to its surroundings and to the use of such surroundings which foreshadows dangerous possibilities. Some objects are inherently dangerous, such as moving machinery or a charged wire. Mere accessibility to such is suggestive of danger, and calls for guard. Surely, a fountain in a public park suggests no inherent danger, nor was there anything about this fountain which rendered it inherently dangerous, nor anything in its relation to its surroundings or to the use of its surroundings which would suggest to the ordinary mind any dangerous possibilities. The circumstances of the accident were so unique and so foreign to the ordinary use and purpose of the fountain and so unprecedented that it should not be deemed to transform into an existing nuisance an instrumentality previously harmless. Sufficient, however, to say that, in our judgment, theNorman case above cited is controlling of the decision herein.

The judgment below is, accordingly, reversed. — Reversed.

De GRAFF, ALBERT, and MORLING, JJ., concur.