Ottumwa weekly courier. (Ottumwa, Wapello County, Iowa) 1872-1899, 1876-05-10

= uuIuS VI UdIElCIs, SuCu HS tiiey WCEc,
were erected under the directions of
the city, and that if they were not suf-
ficient, it was the city's own fault.
Other facts will appear in the opin-
ion. Trial by jury. Verdict for de-
PENDANT. Plaintiff appeals.
y y y; + i. a $sss s"s For App''
f f f: i il il: H $ Ssss: Appellee.
adams Whatever directions
were given by the city to Parks in
regard to the character of the guards,
were given by the Mayor. On this
point Parks testified as follows: The
Mayor called me to him one morning
and said, Mr.. Parks you will have to
put up barricade across the end of
the walk, and over across the other
end,' pointing to them. asked him
what kind of a barricade should put
up. He said had better drive some
stakes or set some posts and nail some
plank to it. He stood and pointed out
on the ground, and said, you want
to extend it so as to turn the travel
off the sidewalk He said to extend
it three feet beyond the old sidewalk,
which was ten feet wide. One bar
ricade was to be put up at the south,
the other at the north end of the
lOts.'"
The evidence shows that such
guards were put up and maintained.
At the time of the conversation be-
tween Parks and the Mayor, no Dig
ging had been done in the street, ex-
ccpt little grading, to enable teams
to go down into the excavation.
The Court instructed the jury as
follows:
eff you find that the Mayor direct
ed the defendant as to what kind of a
barrier to erect around said excava-
ton, and defendant did erect and
keep in existence such barrier as di-
rccted, up to, and after the time said
KGster fell into said excavation and
was injured as aforesaid, you will
find for the defendant"
The giving of the foregoing instruc-
ton is assigned as error.
The defendant made dangerous
excavation in a street of the city for
his private advantage. A person was
injured thereby. The taxpayers have
paid the damages. 1t is claimed by
the defendant that the city cannot re-
cover of him because its Mayor su.
pervised the erection of guards, and
thereby released him from that full
care, which the law would otherwise
have required of him.
AS the city was liable to any person
who might be injured by reason oil
the excavation not being properly
guarded, it was the right of the city
to interfere and erect such guards OF
adopt such other precautionary meas.
ures as it might deem proper. Now
if the measures were such as to pre-
cent the defendant from adopting
other measures, he would not be lia.
BILE to the city if they should prove tc
be insufficient. He would have nc
right TO substitute his Judgment fol
that of the city, and undo what the
city did. We may go even farther
Although the measures adopted b,
the city should not prevent the de
PENDANT from adopting other meas
ures, yet if those adopted should b,
apparently sufficient to accomplish
the object for which they wer,
designed, but proved insufficient by
reason of some defect not discoverablt
by common observation, the defend.
ant we think would not be liable, al
least to the city.
He might, we doubt not, rightfully
claim that he was lulled into security
by what the city did. But that, We
| think, is about as far as the law JUST.
fics us in going. If person, for his
private advantage, makes an excava.
ton in the street of a city, and the
city erects a barrier on one side of it
we do not think that the person who
made the excavation is thereby reliev.
ed from the duty Of erecting barrier
on the other side, if the safety OF
travellers requires it.
Indeed, if the Mayor of the plant
if city had expressly agreed with the
defendant that he might leave the
side open, Though i'm fact nothing
was said about IT'D such an agreement
in our opinion, would not have affect
ed the defendants liability. 1t was
provided in an ordinance of the city
as shown in evidence, "That no per.
son shall, within the city limits, dig
any trench or vault, or make any 9th.
er excavation in or along any Of the
streets or alleys without securing the
same SO that no persons or animals
may fall therein at night" Now il
was not for the Mayor to agree with
the defendant that he might violate
the ordinance. 1t is true, as the APP
pellee contends, that the Mayor is the
executive officer of the city, and
charged with the duty Of seeing that
the ordinances are enforced. But
power to enforce the ordinances does
not include the power to annul them.
Nor because he is made by law the
judge as to when an ordinance has
been violated, can he announce author
itativelv in advance whether a spe-
cific act or omission would or would
not be a violation. He is nota Judge
of the violation of an ordinance, ex-
cept by reason of the judicial powers
with which the statute has clothed
him, and he can exercise those powers
only while sittingas court and upon
an alleged offcnse. We do not think,
therefore, because the defendant
adopted some precautionary meas
ures under the direction of the Mayor,
that he was relieved from the duty of
adopting such additional measures as
the safety of travellers required,
We might, indeed, place the de-
PENDANTS liability upon the ground
that at the time the guards were
erected under the instructions Of the
Mayor, a very small excavation had
been made in the street. The guards
which the Mayor required, were suf-
ficicnt, as the excavation in the street
then was. He expressed no opinion
that the guards would be sufficient il
the excavation in the street should be
enlarged. 1t may be that he knew
that the excavation was to be enlarged
We may conccde that he did. Yet al
the time he gave the directions ;
guard along the street and parable
with it was not only unnecessary, bu
the evidence shows that whatever ex
cavation there was in the street was
being used as o place Of ingress ant
cgress for teams, which were hauling
dirt. We must presume that the
Mayor undertook to direct the erect.
ion Of such guards only as could be
erected consistently with the work
then in progress, especially as the
safety OF travellers required nothing
more at that time.
As the defendant employed an at
torney to defend in the suit of KGs
ter against the city, the amount which