Oral E. HALL, Administratrix of the Estate of Robert C. Hall, Deceased, Appellant,
TOWN OF KEOTA, Iowa, a Municipal Corporation, and Iowa Southern Utilities Company of Delaware, a Corporation, Appellees. William H. HALL, Appellant,
TOWN OF KEOTA, Iowa, a Municipal Corporation, and Iowa Southern Utilities Company of Delaware, a Corporation, Appellees.
[248 Iowa 133] Moon, Barnes & Schlegel, Ottumwa, for appellant.
Edmund D. Morrison, Jr., Washington, and B. J. Byrne, Keota, for Town of Keota, appellee.
Valentine & Greenleaf, Centerville, for Iowa Southern Utilities Co., of Delaware, appellee.
THOMPSON, Chief Justice.
This opinion covers the appeals in two cases, Nos. 48955 and 48956. We have for consideration only the correctness or error of the rulings of the trial court in granting motions to dismiss as to each of the three counts in the petition in each case. The two petitions were based upon the same pleaded state of facts, and are identical except that in No. 48955 the suit is brought by the father of Robert C. Hall, a minor at the time of his death, while in No. 48956 the action is by the administratrix of the Robert C. Hall estate. While the petitions name two defendants, the only one involved in the rulings of the trial court and in this appeal is the Town of Keota, the other defendant having answered and the cases apparently being at issue as to it. The motions to dismiss, filed by the defendant Town of Keota, were identical in each case. Accordingly this opinion will serve as our decision upon the appeal in both cases.
The facts as shown by the petitions, and which under familiar rules we must consider as true for the purposes of our discussion so far as they are well pleaded, are that on April 1, 1955, Robert C. Hall, a boy then just under five years of age, was in the vicinity of a pole located on the northwest corner of [248 Iowa 134] Broadway and Fulton Streets in the defendant town, when the pole fell upon him, inflicting injuries from which he died almost immediately. The pole is alleged to have been of heavy cast iron. It had formerly been used as a light pole by the defendant Iowa Southern Utilities Company; but some time before the company had installed a new system and the town had for several years been using it as a traffic sign device. It bore a stop sign and a 'No U-Turn' sign. It is pleaded that it was located on the sidewalk at the street corner above named.
Count I of the petitions alleges that said pole was not kept in good repair and safe condition; that it was not securely fastened to the sidewalk, but the bolts and nuts used to anchor it had become worn and rusted so that they were useless; and the pole in such condition became a trap and an inherently dangerous instrumentality. It is further pleaded that the defendant knew or in the exercise of reasonable care should have known of the dangerous and unsafe condition of the pole but did nothing to correct or repair it. Failure of the town to keep its public highways and streets in repair and free from nuisances, in violation of section 389.12 of the Code of 1954, I.C.A., is alleged.
Count II repleads the facts above related, and further alleges that the maintenance of
the pole in its defective and dangerous condition constituted a nuisance, rendering the town liable for damages for the injury caused by it.
Count III pleads the same facts, but instead of specific acts of negligence alleges the pole was an instrumentality under the exclusive control of the defendants and relies upon res ipsa loquitur.
The defendant Town of Keota filed motions to dismiss attacking each of the three counts. The most important contention, made in each motion, is that in maintaining the pole it was acting in a governmental capacity, was in the exercise of its police power and was providing for the general public benefit and for the safety and protection of its citizens; and as a matter of law was not liable for the failure of its employes to keep said device free from danger.
The motion addressed to Count II also asserts that a pole such as the one in question does not come within the common law or statutory definition or classification of a nuisance. In its motion[248 Iowa 135] attacking Count III the town, relying again chiefly upon the claim of governmental immunity, also alleges that the pole was not in the exclusive control of the municipality, but was open to the 'interference, control, and contact' of all passers-by. The motions were sustained upon all grounds; the plaintiffs did not plead over within the designated time, and the rulings became final adjudications under R.C.P. 86.
I. The question of the extent of governmental immunity from liability for torts is a difficult one. That it has perplexed this court for many years is apparent from a study of the many decisions found in our reports, some of which seem to support the contentions of the appellant, and some those of the appellee. The briefs filed herein by the able counsel for the respective parties are replete with cases in which we have announced the rule that a city or town may not be held to respond in damages for injuries inflicted while it is performing a purely governmental function; or in which we have avoided the rule and held the municipality may be liable. The earlier cases generally seem to have stated the rule and adhered to it without much discussion or analysis, although even in these there are exceptions in which liability has been found. An attempt to analyze all of the cases bearing on this subject would necessitate an opinion of such length that its value would be lost in a welter of words. We think that the governing principle in this class of cases has emerged in our later cases, that it is right in theory, and should be followed. This necessitates a reversal of the rulings of the trial court.
It is clear that the maintenance and repair of the streets is a governmental function, rather than a proprietary one. It is not contended otherwise by the appellants. On the other hand, the appellee does not argue that a sidewalk is not a part of the street, and we hold that it is such. 'When speaking of a street as a place for public travel, the term includes both the roadway for vehicles and the sidewalk for pedestrians.' Gates v. City Council of Bloomfield, 243 Iowa 1, 12, 50 N.W.2d 578, 584. See also Gallaher v. City of Jefferson, 125 Iowa 324, 330, 101 N.W. 124, 126; 63 C.J.S., Municipal Corporations, § 794(a); 25 Am.Jur., Highways, section 406; Latimer v. Walgreen Drug Company of Texas, Tex.Civ.App., 233 S.W.2d 209, 211, 212; [248 Iowa 136] LeMay v. City of Oconto, 229 Wis. 65, 281 N.W. 688, 689, 118 A.L.R. 1019, 1021; 40 Words and Phrases, Street, pages 277-281.
Accordingly, the duty of the town to keep the sidewalks in a safe condition is identical with its duty to so maintain the roadway proper. We have in the recent case of Florey v. City of Burlington, 247 Iowa 316, 73 N.W.2d 770, discussed and determined the liability of a city or town under section 389.12, Code of Iowa 1954, I.C.A., and related statutes found in the same chapter. Section 389.12 is herewith set out:
'They shall have the care, supervision, and control of all public highways, streets,
avenues, alleys, public squares, and commmons within the city, and shall cause the same to be kept open and in repair and free from nuisances.'
The Florey case deals with parks; but since the same statute applies also to streets, and we have held above that a sidewalk is a part of the street, the same rules must apply. The reasoning of the Florey case is that if a failure to perform the statutory duty imposed by section 389.12 results in injury to one lawfully using the service offered by the municipality, liability results, notwithstanding that the function involved is a purely governmental one. The case also holds that there is liability apart from the specific statute above set forth, quoting Judge Dillon's statement in Soper v. Henry County, 26 Iowa 264, 268. We think However, that section 389.12, supra, is but a more specific delegation of power to cities and towns over their ...