Grant v. City of Erie , 1871 Pa. LEXIS 309 ( 1871 )

The opinion of the court was delivered, October 30th 1871, by

Sharswood, J.

We consider the principles involved in these assignments of error to have been authoritatively ruled in Carr v. The Northern Liberties, 11 Casey 324, and unless that decision is to be overruled the judgment below must be affirmed. In that case a power was conferred by its charter upon a municipal corporation “ to build and erect from time to time, as might become necessary, sufficient close culverts in and over the common sewers established in the district.” The municipality did proceed to build culverts in exercise of the power granted by the act of incorporation. The plaintiff alleged, and gave evidence tending to prove, that the culverts were not sufficient to carry off the water falling in a heavy rain; that in consequence his store had been overflowed, and his stock of goods therein damaged. Chief Justice Lowrie, before whom the cause was tried in the Court of Nisi Prius, at Philadelphia, without hearing any evidence for the defendants, entered a judgment of nonsuit and the judgment was affirmed by this court. The same learned judge before whom the case had been tried, in delivering the opinion affirming the judgment, said: “We do not admit that the grant of authority to the corporation to construct sewers amounts to an imposition of a duty to do it. Where any person has a right to demand the exercise of a public function, and there is an officer, or set of officers, authorized to exercise that function, there, the right and the authority give rise to the duty; but when the right depends upon the grant of authority, and that authority is essentially discretionary, no legal duty is imposed.” It is not easy to perceive any ground for a distinction between the facts of that case and of those presented upon this record.

By the ninth section of the Act of April 8th 1833, incorporating the borough of Erie, the burgess and councils of the said borough were, among other things, authorized and' empowered “ to make and establish a sufficient number of reservoirs to supply water in case of fire.” In pursuance of this authority, they did make and establish a number of reservoirs, among them the one in question, at the intersection of French and Fifth streets. This reservoir was allowed to fall into decay — was never repaired and became so leaky that it .was insufficient for the purpose for which it was constructed. The plaintiff alleges that in consequence, a valuable block of buildings, which he owned in the neighborhood, having taken fire was entirely consumed, there being no water in the reservoir to extinguish it. To what extent, if the water had been there, it might have succeeded in arresting the fire, and preventing the entire damage which he suffered, is a matter of conjecture only, but it may be admitted that it would to some extent. But the same reason existed in. the case of the insufficient culvert. To some extent it probably would have prevented the injury to the plaintiff if it had been sufficient. We do not say, because it is not necessary to say, whether if a duty had been imposed upon the municipality, and not a mere discretionary authority conferred upon them, that their negligence in the premises would not have constituted a good cause of action. It may be doubted whether it would be a case to which the maxim Oausa próxima non remota speetatur has any application. The purpose of the reservoir being to extinguish fires, and the fire having been shown not to have been extinguished in consequence of the non-performance of the duty imposed, it would' be no answer, perhaps, to say that the proximate cause of the injury was the fire, and the want of water only the remote cause. If it were made the duty of a municipality to station a police officer at a particular corner, to protect the foot-passengers from being run over by passing vehicles, it may be doubted whether it would be an answer to an action, to say that the cause of the injury was the horse and wagon and not the absence of the officer. But if the municipality were vested with the authority to employ and keep on foot a sufficient police, no one can surely pretend that a foot-passenger run over by a wagon could sue the corporation for damages, even though he should be able to show that they had formerly kept an officer at that place for that purpose and had withdrawn him, or that he had been guilty of negligence in the performance of his duties. That would be a case precisely analogous to the one now before us.

Judgment affirmed.