Smith v. Philadelphia

The defendant gave no evidence. The court charged that the plaintiff could not recover for the loss of rents, but only the waterrents paid for the time during which the supply was deficient.

The jury found for the plaintiff for $128. He took a writ of error, and assigned the instruction of the court for error.

J. W. Hunsicker, for plaintiff in error. A municipal corporation is liable for negligence to the same extent as an individual. Shearman & Redfield on Negligence, §§ 120, 137, pp. 139, 163. Such corporation is liable for injury resulting from the improper performance of work which it was its duty to perform. Mersey Docks v. Peirce, 11 H. of L. Cas. 686; West Sav. Fund v. Philadelphia, 7 Casey, 185; Baily v. New York, 3 Hill, 538; Addison on Torts, 731; Lacour v. New York. 3 Duer, 406; Pittsburg v. Grier, 10 Harris, 54; Pottstown Gas Co. v. Murphy, 3 Wright, 263.

R. N. Willson (with whom was C. H. T. Collis, city solicitor), for defendant in error. It is discretionary with the city whether she will extend facilities for furnishing water, and therefore she is liable only for injuries resulting directly from negligence, but not where the circumstances producing the injury are the same as if the work had not been undertaken. Wharton on Negligence, § 264; Carr v. Northern Liberties, 11 Casey, 324; Grant v. Erie, 19 P. F. Smith, 420; Atchison v. Challiss, 9 Kan. 603; Mills v. Brooklyn, 32 N. Y. 489. The act of the city was not the proximate cause. Penna. Railroad v. Kerr, 12 P. F. Smith, 353.

PER CURIAM. The claim here is not for damages arising from the bursting of the water-pipes laid by the city, but for the loss of the water caused by the bursting of the pipes leading to the plaintiff's houses, from the action of frost. The real claim is for the loss of the water, and this will not implicate the city in any loss beyond the consideration paid for its use, viz., the water-rents, and these were allowed. The introduction of water by the city into private houses is not on the footing of a contract, but of a license which is paid for.

Judgment afirmed.

Hey v. Philadelphia.

HEY V. PHILADELPHIA.

(81 Penn. St. 44.)

Negligence of city in not guarding a dangerous street — proximate and re

mote cause.

Plaintiff's horse, while being driven on defendant's road, was frightened by a locomotive on an adjacent railroad, became unmanageable, and fell from the road, along which was no barrier, down a precipice and was killed. The jury found that the city was negligent in not placing barriers along the roadside at the point. Held, that the defendant was liable for the damage.*

A

CTION on the case by Hey against the City of Philadelphia, to recover damages sustained through the alleged negligence of defendant in not placing a guard or barrier on one of its streets, adjacent to a precipice, whereby plaintiff alleged that his horse was killed.

The following facts were stated by Judge HARE, of the District Court, who tried the case: "The plaintiff was returning to the city from a drive in the East Park. A turn in the road brought him to the margin of the Schuylkill, and in full view of the bridge of the connecting railway. He had the stream on one side, and a high bank of rocks or earth on the other. The road was wide and level, but there was a sharp declivity toward the river, with no guard or protection except a sidewalk raised some six inches above the road. A train was passing over the bridge, and the plaintiff's horse took fright. He got out, took the animal by the head and turned it toward the bank. The horse continuing restive, the plaintiff got on a rock to obtain a better hold, but lost his footing and fell between the fore feet of the horse. The animal, freed from all restraint, turned short round, overset the wagon, sprang across the sidewalk into the river, and was drowned. The plaintiff contended that the city was guilty of negligence in not erecting a guard between the road and the stream, and that the accident was attributable to that cause. The question was left as one of fact to the jury, and the law reserved for the consideration of the court."

*See Page v. Bucksport, 18 Am. Rep. 239; S. C., 64 Me. 51; Baldwin v. Greenwoods Turnpike Co., 16 Am. Rep. 33; S. C., 40 Conn. 238; Houfe v. Town of Fulton, 9 Am. Rep. 568; S. C., 29 Wis. 296.-REP.

Hey v. Philadelphia.

Court submitted the question of negligence to the jury, reserving the following points:

1. Was there any evidence of negligence on the part of the city in the construction of the road?

2. Was there any evidence that the damage to the plaintiff was the result of negligence on the part of the city?

The jury found a verdict for the plaintiff for $505, subject to the reserved points. The court subsequently entered a verdict for the defendant non obstante veredicto.

R. P. White, for plaintiff in error. A traveler has a right to presume that a highway in use is safe, and even if he knows of defect in it, he is only bound to use ordinary care in avoiding the danger. Shearman & Redfield on Negligence, 413, 414, and cases cited; Humphreys v. County of Armstrong, 6 P. F. Smith, 204. A town bound to provide for the safety of travelers ought particularly to guard against happening of accidents at railroad crossings. Orcutt v. Kittery Point Bridge Co., 53 Me. 500. They are not ordinarily bound to fence roads, but are bound to fence at places otherwise unsafe for travelers exercising ordinary care. Collis v Dorchester, 6 Cush. 396. Whether fence is necessary is a question for the jury. Booker v. Anderson, 35 Ill. 66; Hyatt v. Rondout, 44 Barb. 385; Norris v. Litchfield, 35 N. H. 271; Macungie Tsp. v. Merkhoffer, 21 P. F. Smith, 276. This was one of the ordinary incidents and dangers of travel which the city was bound to guard against by every reasonable means in their power. Scott v. Hunter, 10 Wright, 194; Lund v. Tyngsboro', 11 Cush. 563; Pittsburgh v. Grier, 10 Harris, 54. It was a question of fact for the jury, whether the want of a safeguard was an efficient and concurrent cause of the injury, and there was ample evidence for them to pass upon it. Allen v. Willard, 7 P. F. Smith, 378; Hays v. Gallagher, 22 id. 136; McKee v. Bidwell, 24 id. 218.

R. N. Willson (with whom was C. H. T. Collis, city solicitor), for defendant in error. The city claims that she is not bound to put or keep any or all of her highways in a condition which will insure or promote safety to horses which have broken away from, and not under the control of, their drivers, for the reason that the use of a highway by such an uncontrolled animal is not an ordinary, natural and legitimate use. Davis v. Dudley, 4 Allen, 557; Titus

Hey v. Philadelphia.

v. Northbridge, 97 Mass. 258; Fogg v. Nahant, 98 id. 578; Moulton v. Sanford, 51 Me. 127; Linton v. Chester, 1 Weekly Notes, 192.

GORDON, J. The jury found that the city authorities were derelict in duty, in not placing proper guards or barriers along the river side of this very dangerous piece of road, and that this neglect was the proximate cause of the loss complained of by the plaintiff. The court, on the other hand, regarded the fright and breaking away of the horse as the immediate cause of the disaster, and hence entered judgment for the defendant, non obstante veredicto. Herein we think the court erred. It is true that ordinarily provision is not to be made against contingencies so rare as runaway horses. Roads and bridges are constructed for the purpose of ordinary travel, and if they fulfill such purposes they are sufficient, and those who have them in care are not chargeable with the results of extraordinary accidents that may occur upon them.

These things must, however, be governed by common reason and observation. A road may be perfectly safe under some circumstances, and very unsafe under others. A way of ten feet in width, in the open country, may be as secure as one of ten times that width, but along the brow of a precipice such a way would be very insecure. Perhaps, indeed, a steady, sure-footed team, handled by a cool and skillful driver, may pass over it as securely as over the former, but drivers of only ordinary nerve, with fractious teams, are unsafe upon it; and it is just for this reason that such a road should be provided with guards which, under ordinary circumstances, would not be essential. As was said, per curiam, in the case of Lower Macungie Tsp. v. Merkhoffer, 21 P. F. Smith, 276, “a highway must be kept in such repairs that even skittish animals may be employed without risk or danger on it." So we have held that, where a horse frightened and backed off a bridge, the township was responsible for the loss resulting therefrom, because of the neglect of the supervisors in not providing side railings, by which, notwithstanding the fright of the horse, the accident might have been prevented. Newlin Tsp. v. Davis, 27 P. F. Smith, 317. Had this accident happened upon an open and unrailed bridge, under circumstances similar to those exhibited by the evidence now under consideration, there could be but one opinion as to the liability of the city. In such case the proximate cause of the disaster would be so obvious that no one could avoid its observance. Given secure

Hey v. Philadelphia.

side guards, and the driver is under no apprehension of immediate danger, whether his horse attempts to run or back; in either case, he retains his seat and the lines, and has a reasonable chance to save himself and his property; remove the guards, and he is at once surrounded by circumstances of extreme danger, calculated to appal an ordinary person, and it may, indeed, be the best thing he can do to abandon horse and carriage to their fate, and endeavor, as best he may, to save his own life. Here the circumstances created by the neglect of the public authorities are such as to render the accident not only possible, but probable; and it is against such probabilities that they are bound to provide ; and the want of such provision is negligence per se. There is, however, no reasoning which applies to a bridge that does not also apply to a road, for a bridge is but part of a road. If the road is so dangerous, by reason of its proximity to a precipice, or any other cause, that common prudence requires extra precaution in order to insure the safety of the traveling public, why shall not the authorities be bound to such precaution?

Now that Hey was surrounded by circumstances calculated to excite alarm in the mind of an ordinary person, no one can well deny; that the unfenced precipice was a dangerous element, which would naturally beget such alarm, will, no doubt, also be conceded; and that he did nothing that a man of prudence ought not to have done the jury have found. Where, then, was the fault? Was it not to be found in this unguarded declivity? But, it is said, the running away of the horse was the proximate cause of the injury, and, had it not gone over the bank, it might have gone farther with the same result in the end. This, however, does not follow; nor is it necessary to be conceded, for, ordinarily, a dead horse does not result from a runaway; and, hence, had there been proper guards at this place, the chances are ten to one the horse, at least, would have been saved. Granting, however, that the runaway was the immediate cause of the whole disaster, still the question remains, What produced the runaway? In Pittsburg v. Grier, 10 Harris, 54, the immediate cause of the sinking of the steamer was the striking of some heavy body floating in the stream, nevertheless, as the causa causans was some piles of pig metal, negligently permitted to lie on the public wharf, thus obliging the boat to occupy a position more dangerous than it otherwise would have occupied, the