Smith v. Davis , 22 App. D.C. 298 ( 1903 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

There are numerous assignments of error made by the appellants; but 'in substance they are all reducible to two questions that cover the case: (1st) Whether the piling the lumber in the street or in the public way constituted an unlawful obstruction, such as would make it a public nuisance ? and if so, (2d) whether the defendants are liable for the injury resulting therefrom to the plaintiff, under the facts of the case.

1. In the declaration, it is alleged that the District of Columbia, with knowledge, wrongfully and negligently suffered and allowed the defendant Smith to place and maintain, without a permit so to do, on Fourth street, etc., large piles of lumber and heavy timbers, and that the plaintiff, a child of ten years of age, while lawfully playing on the said public highway in the neighborhood of said lumber piles, on the 23d day of July, 1901, using due care, sat upon a pile of said heavy timber for the purpose of resting herself; and that said piles of lumber and timber were so carelessly, negligently, and unskilfully stacked by the defendant Smith, his agents, etc., that, without any warning to, or cause applied by, the said plaintiff, one of said heavy timbers fell from an adjoining pile upon her head and chest, from the force of which she was violently thrown to and fell upon the ground with said heavy timber pinning her down, and that by reason of said blow, and her fall therefrom, she then and there suffered severe laceration of her right cheek, besidesr suffering severe pain in her eyes and other parts of her head and chest, etc., and has therefrom permanently lost the use of her left eye, etc.

The facts thus charged, if shown to be true, would certainly establish the existence of a public nuisance in the street, and an actionable injury suffered by the plaintiff. It is well settled that a building, or other structure, or the placing of materials, such as lumber or coal, for an unreasonable time or in an unreasonable manner, upon a street or highway without the-sanction of the legislature, is a public nuisance, and the municipal corporation in whose streets such nuisance may exist cannot give a valid permission thus to occupy its streets without express power to this end conferred by charter or statute. The usual power to regulate and control streets has never been held to authorize the municipal authorities to allow them to be encroached upon by the adjoining owners, by erections thereon of buildings, rathe use thereof as places of deposit for lumber, or coal, or other materials, for their own exclusive use. And such continuous-obstruction of a public street or highway, not authorized by competent legal authority, is a public nuisance, for which the authors of it may be held liable. 2 Dill. TVPnn. Corp., § 660, and cases there cited. The piling of the lumber and keeping it within the limits of the street was, therefore, a nuisance and a wrong: as against the public, and all suffering private injuries in consequence of its existence. And the municipal corporation, having-ample power to prevent or remove the nuisance, is equally liable with the creator of it for any injury that may result therefrom.. Wood, Nuisances, § 744, and cases there cited. See also a leading case upon this subject, Parker v. Macon, 39 Ga. 725, 99 Am. Dec. 486. The act of piling the lumber in a place where it was-not lawful to pile it, to be continued, was of itself an act of negligence by the party to whom the lumber belonged, and it was. equally neglectful on the part of the municipal corporation in allowing it to remain where it was so illegally placed. This is-negligence, defined as being the failure to observe, for the protection of other persons, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such othef persons suffer injury. Cooley, Torts, p. 630. Both defendants are therefore in a position to be made liable to a party-suffering an injury in consequence of their wrongful acts and omissions.

2. The defense to the action is attempted to be maintained principally upon the supposed failure of the evidence to make-apparent the cause of the falling of the timber upon the children. It is insisted that, in the absence of such evidence, and that because there was no evidence to show that the falling of the timber could be fairly attributed to the negligence of the defendants,, there could be no recovery against them for the injury to the-plaintiff. It is contended that the lumber was carefully piled or stacked, and that care had been taken to make it secure against possible accident. But, in the nature of things, there must have-been an adequate cause for the falling of the timber, and the piling of the timber made it subject to the operation of that cause. The court instructed the jury that if the plaintiff was-guilty of negligence in causing the timber to fall on her, then she could not recover. But there is no evidence to show that she was instrumental in causing the timber to fall, other than the fact that she and the other two children were seated on the adjoining pile of the lumber. The defendants, by placing the lumber and allowing it to remain as they did, necessarily incurred the risk of any mischief that might result therefrom. It was piled in the street, on public ground, where the public had a right to be, and it was tempting to children to play on it, or, it might be, to sit on it; and if, by indulging their natural impulses as children, they were on the timber, and it fell from some jar or disturbance received, it would be difficult to say that there was any such negligence on their part as would defeat a recovery for an injury received by one of them. The case would seem to fall very clearly within the principle of Lynch v. Nurdin, 1 Q. B. 29. That case is a leading one, and it has been often cited and followed in subsequent cases.

That was a case where the defendant negligently left his horse and cart unattended in the street. The plaintiff, a child seven years old, got upon the cart in play, and another child incautiously led the horse on, and the plaintiff fell off, and one of the wheels of the cart ran over his leg and broke it. An action on the case was brought, and, after much argument and consideration, it was held that the defendant was liable, though the plaintiff was technically a trespasser and contributed to the mischief by his own act; and that it was properly left to the jury to determine whether the defendant’s conduct was negligent, and that negligence caused the injury.

The unanimous opinion of the Queen’s bench was delivered by Lord Denman, Chief Justice, and after stating the facts, among other things, he said: “It is urged that the mischief was not produced by the mere negligence of the servant, as asserted in the declaration, but at most by that negligence in combination with two other active causes, — the advance of the horse in consequence of his being excited by the other boy, and the plaintiff’s improper conduct in mounting the cart and so committing a trespass on the defendant’s chattel. On the former of these two causes no great stress was laid, and I do not apprehend that it can be necessary to dwell- at any length [upon it.] For if I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer mighthave redress by action against both or either of the two, but unquestionably. against the first * * * But in the, present case an additional fact appears. The plaintiff■ Ijimself has done wrong; he had no right to enter the cart, and, abstaining from doing so, would have escaped the mischief. Certainly he was a cooperating cause of his own misfortunes, by do.ing an unlawful act; and the question arises, whether that fact alone must deprive the child of his remedy. The legal proposition that one who has by his own negligence contributed to the injury of which he complains cannot-maintain his action against another in respect of it has received some qualifications. Indeed, Lord Ellenborough’s doctrine in Butterfield v. Forrester, 11 East, 60, which has been generally adopted since, would not set up the want of superior degree of skill or care as a bar to the claim for redress: Ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff’s situation; and this would evidently be very small, indeed, in so young a child.” The learned chief justice then proceeded to examine the cases upon the subject, and in conclusion he said: “But the question remains, Can the plaintiff then, consistently with the authorities, maintain his action, having been at least equally in fault? The answer is that, supposing that fact ascertained by the jury, but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blamable carelessness of his servant having tempted the child, he ought not to reproach the child with yielding to the temptation. He has been the real and only cause of the mischief. He has been deficient in ordinary care; the child, acting without prudence or thought, has, however, shown these qualities in as great a degree as he could bé expected to possess them. His misconduct bears no proportion to that of the defendant, which produced it.”

This case of Lynch v. Nurdin has been recently cited and quoted from with approval by the Supreme Court of the United States, in the case of Union P. R. Co. v. McDonald, 152 U. S. 262, 38 L. ed. 434, 14 Sup. Ct. Rep. 619. In that case a railroad company which operated a coal mine near one of its stations in Colorado was in the habit of -depositing the slack on an open lot between the mine and the station in such quantities that the slack took fire and was_ in a permanent state of combustion. This fact had been well known for a long time to the employees and servants of the company, but no fence was erected around the open pit, and no efforts were made to warn people of the danger. In this state of things, a lad twelve years of age, and his mother, arrived by train at the station, and stopped there. Neither had any knowledge of the condition of the slack, which, on its surface, presented no sign of danger. Something having alarmed the boy, he ran towards the slack pit, fell on and into it, and was badly burned. Suit was brought to recover damages from the railroad company for the injuries thus sustained, and it was held that the company was guilty of negligence in its failure to fence the slack; and that the lad was not a trespasser under the circumstances, and had not been guilty of contributory negligence.

In that case the breach of duty that constituted the negligence was the failure of the company to fence in the slack pit, as required by law; while in the present case the breach of duty was in piling and keeping the lumber in the public street by the defendant Smith, and the allowing and suffering the same to remain there by the municipal authorities, contrary to law.

In the case of the Union P. R. Co. v. McDonald, the case of Lynch v. Nurdin is extensively quoted from and approved; and the case of Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. ed. 745, is also quoted and relied upon, in the elaborate opinion of the court, by Mr. Justice Harlan. The case of Sioux City & P. R. Co. v. Stout is a very apposite and strong authority in the case before us. In that case the question was whether.the railroad company was liable for an injury received by an infant, while upon its premises, from idle curiosity, or for purpose of amusement, if such injury was, under the circumstances, attributable to the negligence of the company. The defendant there rested its defense exclusively upon the ground that the company was not negligent, but insisted that the injury to the plaintiff was accidental or had been brought upon himself by his own act.

There it appeared that the railroad company owned and used for its roadbed and depot grounds a tract of enclosed land, in the town of Blair, Nebraska, upon which the company had its depot house, and a quarter of a mile from which was a turntable belonging to it. The plaintiff, a boy of little over six years of age, together with one or two other boys, went to the company’s depot, about a half a mile distant, without any definite purpose in view. Upon arriving there, the boys, at the suggestion of one of them, concluded to go to the turntable, and proceeded, traveling' the track of the railroad. When they reached the turntable, which was not attended or guarded, nor at that time fastened or locked, but could be easily revolved on its axis, two of the boys commenced to turn it. The plaintiff’s foot, while he was attempting to get on it, was caught between the end of the rail on the turntable, as it revolved, and the end of the iron rail on the main track, whereby it was badly cut and crushed, resulting in a serious and permanent injury. It appeared in evidence by one of the employees of the company that he had previously seen boys playing at the turntable, but the fact was not communicated to the officers of the company having charge of the turntable.. The plaintiff, however, had never been at the turntable before.

The case was tried before Judge Dillon, then circuit judge, and he submitted the case to the jury upon a very carefully prepared charge, which was fully approved by the Supreme Court on writ of error to that tribunal. In the opinion of the Supreme Court it was said: “That the turntable was a dangerous machine, which would be likely to cause injury to' children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater, that existed with reference to all children. When the jury learned from the evidence that he had suffered a serious injury by his foot being caught between the fixed rail of the roadbed and the turning rail of the table, they were justified in believing that there was a probability of the occurrence of such accidents.”

And so in the present case, the fact that the pile of timber did fall and inflict the injury that is complained of was proof to justify the inference that the pile of timber was liable to fall, and that there was a probability of the occurrence of such accidents as did in fact occur. Thus, by piling the lumber in the street and allowing it to remain there, the defendants must, as a consequence of their illegal acts,’ be held to have known to be possible, and therefore chargeable with, the injury resulting therefrom.

It is quite apparent from the authorities to which we have referred, that the court below in the instructions given to the jury, by the qualification added to the prayer granted at the request of the plaintiff, and the granting of the second prayer offered by the defendant, was more liberal to the defendants than the law strictly required. The rule as to contributory negligence would appear to have been applied with more strictness against the plaintiff in this case than was applied in either the case of Lynch v. Nurdin, or Sioux City & P. R. Co. v. Stout. The case was fully and fairly embraced by the instructions given, and we find no error in the rulings of the court in respect of the prayers that were rejected. We think the judgment should be affirmed; and it is so ordered. Judgment affirmed.