Blain v. Incorporated Town of Montezuma

McClain, J. While plaintiff, was driving a horse along a street of the defendant town, one Sterns, who, as alleged, was driving a horse and vehicle in a careless and reckless manner along said street in the opposite direction and upon the wrong side of the street, ran the shafts of his vehicle into the plaintiff’s horse, causing the damage complained of. The alleged negligence of the defendant town contributing to the injury consisted in the fact that, although the town had undertaken to light said street and to secure safety to travelers thereon, it failed in its duty to reasonably light the same; such failure being caused by the use of lights of low and insufficient power, placed at too great a distance apart at the extreme outer edge of the street, and in permitting the trunks of large trees and their branches to obstruct the light, with the result that at intervals between the lights, and where such lights were obstructed by the trees, a traveler on the street was blinded by passing from the light into the darkness; the street being thus rendered ’ unsafe for travel. Plaintiff alleged that the acts of the town in these respects created a nuisance. The demurrer challenged the sufficiency of plaintiff’s petition to show negligence or the existence of a nuisance, and also interposed 'the objection that the alleged negligence of the town was not the responsible and proxiimate cause of the injury. [143] i. municipal corporations: street lights: obstruction: nuisance: liability of ci‘y [142] I. It is provided in Code, section 153, that cities and towns shall have the care and supervision and control of their streets, and cause the same to be kept open and in repair and free from nuisance; but no breach of this duty [143] is alleged in plaintiff’s petition, unless tbe trees along tbe sides of the streets or the shadows east by ... ... _ them into the streets, where their trunks and branches intercepted- the street lights constituted a nuisance. It is admitted by counsel for appellant that trees along the side of the street of a city or town do not constitute a nuisance per se. No system of lighting has yet been devised which will prevent the trunks and branches of trees which stand between the traveled portions of the street and the sidewalks from casting shadows, either in the street or across the sidewalks. We should be unwilling to adopt any ruling which would necessitate the destruction of all the trees between the lot lines, in order to avoid the casting of shadows into the street or across the sidewalk. Such shadows are necessarily incident to the artificial lighting of streets, no matter how carefully it may be devised. It is equally impossible, in pursuance of the methods of lighting in common use which are practicable in the ordinary residence streets of a city or town, to adopt any system of lighting which will not occasion contrasts of high light and comparative darkness in the intervals between the lights, so that the effect on the traveler at the intervals of comparative darkness may be to measurably blind him as to vehicles approaching. It seems very clear to us that the shadows of trees and the intervals of comparative darkness between the lights did not constitute nuisances which the defendant was bound to abate, and for the natural consequences of which it could be held responsible in damages. „ 2. Same: ^ judicial011' control. II. Cities and towns are given power to light their streets (Code, section Y56), but no duty is expressly imposed upon them to do so. Counsel for appellant concedes that mere failure to undertake the duty of ^ ** lighting any particular streets can not, in the absence of some peculiar condition rendering it necessary to light in order to render the streets [144] safe for travel, constitute negligence; and he does not contend that there was any peculiar condition of this street rendering lights necessary to ordinary safety of travel. He does contend, however, that as the defendant town had undertaken to light the street it was negligent in providing an inefficient system of lighting. But it is well settled that the exercise of the power given to a city or town to light its streets rests in the discretion of the corporation, and that the conferring of such power does not give rise to an absolute obligation, either as to the extent or the method of lighting to be adopted. It is not left with the courts to say how the lights shall be distributed or how any particular street shall be lighted. Wolf v. District of Columbia, 21 App. D. C. 464 (69 L. R. A. 83). In general, the exercise of power to light its streets is left discretionary with the city. Canavan v. Oil City, 183 Pa. 611 (38 Atl. 1096) ; Freeport v. Isbell, 83 Ill. 440 (25 Am. Rep. 407) ;. Lyon v. Cambridge, 136 Mass. 419; Vincennes v. Thuis, 28 Ind. App., 523 (63 N. E. 315); Vincennes v. Spees, 35 Ind. App. 389 (74 N. E. 277); Hazelrigg v. Frankfort, 29 Ky. Law Rep. 207 (92 S. W. 584) ; 3 Abbott, Mun. Corp. 2290; Elliott, Streets, 623. As the plaintiff’s petition does not state facts tending to show that the defendant town permitted a nuisance in its streets or was negligent in failing to make them safe for travel, we need not discuss the question of proximate cause. The judgment is affirmed.