
    HENRY SEEWALD v. EDWARD SCHMIDT and Others.
    
    November 27, 1914.
    Nos. 18,725—(55).
    Contractor’s negligence — liability for runaway.
    The defendants Madsen Brothers were operating a concrete mixer, for which a gasolene engine furnished the motive power, immediately adjacent to a public alley in the defendant city of Waseca, but not in the alley. The defendant Schmidt drove his team into the alley upon business and close to the engine. The horses became frightened and ran away and injured a horse of the plaintiff. It is held:
    
    (1) That the defendant city was not liable.
    Note. — As to the liability for placing near highway object calculated to frighten horse, see note in 12 L.R.A.(N.S.) 1152.
    
      (2) That the evidence did not justify a finding of the jury that the defendant Schmidt was negligent.
    (3) That the evidence justified a finding that the defendants Madsen Brothers were negligent.
    (4) That whether their negligence was the proximate cause of the injury to the plaintiff’s horse was for the jury.
    (5) That the defendants cannot avail themselves of a variance between the pleading and proof first suggested on the appeal.
    Action in tbe district court for Waseca county to recover $325 for injury to plaintiff’s borse. Tbe facts are stated in tbe opinion. Tbe case was tried before Childress, J., wbo when plaintiff rested denied separate motions on tbe part of defendants' to dismiss the action, and a jury which returned a verdict for $250 in favor of plaintiff. From an order denying their separate motions for a new trial, defendants appealed.
    Eeversed as to defendants city and Schmidt and affirmed as to defendants Madsen.
    
      P. McGovern, F. G. Eiesler and Tames G. Melville, for appellants.
    
      Moonan & Moonm, for respondent.
    
      
      
         Reported in 149 N. W. 655.
    
   Dibell, C.

Separate appeals by tbe defendants from orders of tbe court denying their motions for a new trial after a verdict for tbe plaintiff.

Tbe defendants Madsen Brothers were engaged in tbe construction of a building in tbe city ef Waseca fronting at tbe west on Second street and extending easterly to within a few feet of an alley some 20 feet in width. This alley extended through tbe block from the street at tbe south'to tbe one at tbe north. Tbe building in process of erection was toward tbe north of the block. In doing their work tbe defendants were using a concrete mixer operated by a gasolene engine, Tbe defendant Schmidt, a farmer residing some seven miles from tbe city, drove into tbe southerly end of tbe alley proceeding northward with a lumber wagon and a somewhat spirited or skittish team. He bad some harness which be purposed leaving for repair at a harness shop just south of tbe concrete mixer. Tbe concrete mixer a'nd gasolene' engine were close to tbe alley but not in it. Tbe defendant stopped bis team when be reached tbe harness shop, jumped out, bolding to tbe lines. Just then the team became frightened, turned around to the right and to the south, got away from him, and ran into and injured a horse of the plaintiff.

The verdict was against all three defendants.

The city is not liable. The concrete mixer was not in the alley. There was building material, used by Madsen Brothers, in the alley; but the obstruction resulting from it had no causal connection with the runaway.

There is nothing in the case of City of Winona v. Botzet, 169 Fed. 321, 94 C. C. A. 563, 23 L.R.A.(N.S.) 204, cited by the respondents, nor in the cases cited therein, suggesting a liability on the part of the city. In that case a team was frightened by a blast of the whistle of the city waterworks.

The cases hold that under certain circumstances a city is negligent in failing to guard a street by barriers against pitfalls or dangers on adjoining private property. Grant v. City of Brainerd, 86 Minn. 126, 90 N. W. 307, and cases cited. This is merely a matter of keeping the streets safe. In some cases it is held that a city may be liable for injuries sustained by travelers on the street from the fall of adjacent buildings or walls which have become dangerous to the public, and which the city has charter authority to abate, though they are privately owned and are on private property. The rule has been stated as follows:

“Municipal corporations to whom the state has delegated ample power to abate common nuisances are bound to exercise that power for the removal of such of them as they know, either actually or constructively, to exist. This duty, it seems, is positive.” Williams, Municipal Liab. Tort, § 186.

If there is liability it should be confined to injuries sustained by a traveler on the streets.

“A failure by the corporation to exercise its charter power to abate nuisances not rendering its streets unsafe does not give a person who is injured by such failure a private action against the corporation.” 4 Dillon, Mun. Corp. § 1628.

This limitation is illustrated by Davis v. City of Montgomery, 51 Ala. 139, 23 Am. Rep. 545; Cain v. City of Syracuse, 95 N. Y. 83.

So it bas been held that a city is liable for injuries sustained by one in a street caused by tbe falling of burned walls of a building standing upon adjacent premises of private persons where they constituted ja nuisance. Parker v. City of Macon, 39 Ga. 725, 99 Am. Dec. 486; City of Savannah v. Waldner, 49 Ga. 316; Kiley v. Kansas City, 87 Mo. 103, 56 Am. Rep. 443; Grogan v. Broadway Foundry Co. 87 Mo. 321. The principle sustaining such liability has been denied. Howe v. City of New Orleans, 12 La. Ann. 481; Hixon v. City of Lowell, 13 Gray, 59. In Lincoln v. City of Boston, 148 Mass. 578, 20 N. E. 329, 3 L.R.A. 257, 12 Am. St. 601, the court said that '“noises outside the limits of the highway amounting to a public nuisance are not a statutory defect in the way.”

It is not necessary to determine the correct rule or the limits of its .application. There was not a nuisance which could be abated by the •city. At most there was negligence in the operation of the engine and mixer. There is no principle of law upon which liability on the part of the city can be rested.

The evidence was not such as to justify a finding that defendant .Schmidt was negligent. He drove into the alley from the street south •of the block and some distance from the engine. He knew that the -.theater building was being constructed. There is evidence that when he got into the alley he saw the mixer and knew that the engine was running. The evidence is that the exhaust of the engine could be heard for some distance. The character of the noise depended upon .the amount of material being fed into the mixer. It was more or less intermittent. Schmidt was driving a lumber wagon, the ground was frozen, and the wagon made some noise. His team was young and ¡spirited and needed careful control. He was in pursuit of his business and making use of the public alley to reach the harness shop. The character of his team was not such that he was precluded from using it in his ordinary business when in town. He was not lacking in care in driving. He held to the lines and was dragged until they •broke. Viewing the question of liability from a practical, commonsense standpoint, a jury should not be allowed to find that one using .a team as the defendant was using his, driving with the care he was ¡exercising, though his team was spirited and somewhat unused to the noises of a busy town, was negligent. Snob a burden of liability is too onerous.

It is claimed that tbe defendants Madsen Brothers were negligent in not sufficiently muffling tbe exhaust of tbe engine. Tbe muffler was attached to tbe engine. Tbe claim is that tbe defendants should have attached a pipe of some length to tbe exhaust, attached tbe muffler to tbe end of it, and thereby such noise as there was would have been at a greater distance from tbe alley. There is some evidence that because of tbe noise of tbe engine trouble was bad with tbe teams which were hauling material for tbe building.

A majority of tbe court are of tbe opinion that tbe question of tbe negligence of defendants Madsen Brothers was for tbe jury.

Tbe alley was narrow and was much in use by tbe public. Tbe farmers used it to unload their produce at the rear of tbe stores and to load their supplies. Tbe merchants used it to receive their freight and to load out their merchandise. Tbe mixer, while not in tbe alley, was immediately adjacent to it. Tbe view that tbe defendants may be held liable finds support in Wolf v. Des Moines Elevator Co. 126 Iowa, 659, 98 N. W. 301, 102 N. W. 517. There tbe exhaust pipe from a gasolene engine used in connection with a grain elevator extended through tbe roof of tbe engine room and was about 40 feet from tbe traveled way. It seems that tbe muffler was defective. The court refers to tbe fact that an extension of tbe exhaust pipe might have been made, or that tbe engine might have been made to exhaust into a vat of water, and tbe noise thereby lessened. In tbe course of its opinion tbe court said:

“Tbe basic principle upon which tbe doctrine of all tbe cases is bottomed is found in tbe maxim old as tbe books, in substance, that no man shall make use of bis own property in such manner as to unreasonably interfere with tbe enjoyment on tbe part of others of tbe rights conferred upon them by law. Of necessity it follows that in ■each individual case tbe question must resolve itself to this: Was tbe use being made of tbe adjacent property such in character as to be an unnecessary interference with or unnecessarily dangerous to persons making lawful use of tbe street or highway ? And whether or not improper use amounting to negligence has been made to appear in any given case is generally a question to be determined by the jury. Taking the facts as shown by the record in the instant case, we think it cannot be doubted but that the elevatoh was located at a place where it might properly be. So, too, as we think, the use of a gasolene engine in connection with the operation of such elevator was proper and lawful, and cannot therefore be said to have been per se negligent. The use of gasolene in the creation of motive power has become general throughout the country, not only in the operation of mills and factories, but as well for the purposes of locomotion, and there can be no grounds upon which to predicate at this time a holding that such use is in and of itself wrongful. As in the use of steam and electricity, it becomes wrongful only when the use is attended with negligence.”

Applying the reasoning of that case we hold that the jury could find negligence in Madsen Brothers.

Whether the negligence of the defendants Madsen Brothers was the proximate cause of the injury to the plaintiff’s horse was at least for the jury. Griggs v. Fleckenstein, 14 Minn. 62 (81), and cases cited thereto in 1 Notes on Minn. Reports, 556.

The complaint alleged that the engine and mixer were in the alley and that the defendant Schmidt left his team in the alley unhitched. The questions of negligence already discussed were litigated without objection. The claim of a variance is now for the first time made. It is too late. Johnson v. Avery, 41 Minn. 485, 43 N. W. 340; Lemon v. DeWolf, 89 Minn. 465, 95 N. W. 316; Raitila v. Consumers Ore Co. 107 Minn. 91, 119 N. W. 490.

Other assignments of error do not require specific mention. They have been considered.

Reversed as to defendants city of Waseca and Schmidt and affirmed as to defendants Madsen Brothers.'  