Heller v. Town of Portsmouth

De Grape, J. This action was commenced by plaintiff against the town of Portsmouth, Iowa and other defendants to recover damages for personal injuries caused by the alleged neg [105] ligence of the defendants. The trial court submitted the case to the jury as to the defendants Smith and Clark and a verdict was returned in their favor. On motion a directed verdict in favor of the defendants Hammerand and the town of Portsmouth was entered. On appeal to this court the judgments as to all defendants except the town of Portsmouth were affirmed. 188 N. W. 878. The defendant town filed its petition for rehearing which was granted on December 15, 1922. This opinion, therefore, concerns itself only with the liability of the town. The facts disclose that on November 11, 1918 the town of Portsmouth gave public expression of rejoicing by reason of the suspension of hostilities between the combatants in the World’s War. It was Armistice Day, and in common with other cities and towns of this country there was a general indulgence in the use of many noise-making devices that usually mark our popular celebrations of great events. On prior patriotic occasions the defendant William Hammerand had fired anvils. The method adopted was to place one anvil face downwards in the street so as to expose a square hole in the. bottom of the anvil and around and above this hole was placed an iron ring. The hole and ring were then filled with powder, some of which was scattered over the outside surface of the anvil. Another anvil was placed upon the ring and the powder was then fired with an iron, rod heated red hot at one end. • On the morning of this day two citizens named Doyle and Olihger, who happened to be town couneilmen, requested the assistance of .Hammerand in ‘ ‘ shooting anvils. ’ ’ To this request he reluctantly complied and proceeded to set the anvils. About this time the mayor appeared on the scene and on being told what was being proposed told them “to go ahead and shoot” and in reply to a question “Where,” answered “In the street.” When the powder that Hammerand was using became exhausted he ceased operations leaving the noise-making instrument where it had been used. It was then that the defendants Smith and Clark appeared on the scene and on their own initiative undertook the shooting of the anvils. After a few explosions the iron ring was lost. Thereupon they procured an iron wagon [106] burr aud proceeded to use it until the happening of the accident giving rise to this action. Powder of a different quality was used by Smith and Clark and after a few explosions, and about twenty minutes after Hammerand had left, the wagon burr burst into pieces one of which* struck the plaintiff in the eye causing a serious injury. Is the defendant town under these circumstances liable for the damages sought to be recovered by the plaintiff í This case does not involve the violation of a town ordinance nor does the evidence disclose that the injury and consequent damages was by virtue of-any corporate act of the town. Ultra vires is not involved. It is shown without dispute that in the first instance certain town officers acting as individuals gave their consent to the firing of the anvil on a street of the town. Conceding at the outset that the placement of the anvils in the street constituted an obstruction, this act was not the proximate cause of the injuries and consequent damages alleged by plaintiff. Had the firing of the anvil on the streets of the town been in contravention of an ordinance, and the officers of the town had knowledge of the illegal act and had permitted them the use of the anvil in the manner charged and a third party was injured the city would not be liable. “A city is no more liable for the consequences of a violation of an ordinance by its mayor or council as individuals than it would be if the illegal act were done by a private citizen.” Ball v. Town of Woodbine, 61 Iowa 83. A fortiori a city should not be held liable in the absence of an ordinance for the consequences of an act permitted by its mayor, or some of its councilmen when that act would be binding upon them simply as individuals. It may not be claimed that what was said or done by Mayor Monahan or the two councilmen constituted an official act. They happened to be officials — nothing more. True a city or town is bound to keep its streets free from nuisances. Shinnick v. City of Marshalltown, 137 Iowa 72. However, before a city or town is liable for damages the alleged nuisance must be the proximate cause of the damages. The act of the officials of the defendant town in consenting to or [107] assisting1 in the shooting of the anvil was not the exercise of their duties or within their jurisdiction as town officers, and was beyond the jurisdiction of the town itself. The act of firing an anvil is in the same category as the shooting of firecrackers or other fireworks on a public street. The facts in this case bring it squarely within the principle announced in Ball v. Town of Woodbine, 61 Iowa 83 and Remy v. City of Shenandoah, 184 Iowa 1370. The case of Wheeler v. City of Fort Dodge, 131 Iowa 566 is clearly distinguishable from the case at bar, and in commenting on the Ball ease the opinion states: “The essence of the complaint in that case was either the personal misconduct of certain persons who happened to be officers, or the failure of such officers to properly police the city, and for such failure the cases are quite uniform in holding the city not subject to a claim for damages.” The record does not show or establish that the anvil in question was a nuisance per se, or an obstruction to anyone or to anything in the use of. the street wherein it was situated. The anvil itself was not a menace.' 'In brief the presence of the anvil in the street was not the proximate cause, but merely a condition. Parmenter v. City of Marion, 113 Iowa 297. The defendant town was not bound to anticipate the negligent act of a third party, and it was the improper handling of the anvil by strangers to the town that proximately caused the injury. If anyone was negligent it was the defendants Clark and Smith, and a jury has said they were not negligent. Holding as we do that the theory of nonliability applies to this ease under the facts we deem it unnecessary to discuss the other points and propositions found in briefs and arguments. Wherefore the judgment entered by the trial court as to all defendants is — Affirmed. Preston, C. J., Evans, Stevens, and Arthur, JJ., concur.