Fritsch v. City of Allegheny , 1879 Pa. LEXIS 324 ( 1879 )

Mr. Justice Mercur

delivered the opinion of the court,

In this ease the court ordered judgment of nonsuit against the plaintiffs, and refused to take it off. This is assigned for error.

A municipal corporation is bound to keep the streets, roads and bridges, over which it has jurisdiction, in repair: Dean v. New Milford Township, 5 W. & S. 545; McLaughlin v. City of Corry, 27 P. F. Smith 109. A road or street may be put out of repair by the deposit of obstructions thereon which impede and hinder travel or make it dangerous, or by partial destruction of the roadbed itself, producing the like effect. To repair means to replace, to restore to sound or good condition after injury or partial destruction. Therefore, to repair a road or street, to restore it to its former condition and give it the essential properties of a suitable public highway, requires the removal of all obstacles cast upon it, which impede its free passage: Pittsburgh and Birmingham Passenger Railway Co. v. Pittsburgh, 30 P. F. Smith 72.

An action will lie against the municipality to recover • damages for an injury sustained by reason of the negligence of its officials to keep its roads and streets in proper repair: Dean v. New Milford Township, supra; Allentown v. Kramer, 23 P. F. Smith 406; Township of Newlin v. Davis, 27 Id. 317. What is and what is not negligence in a particular case is generally a question for the jury and not for the court. If, there be no doubt as to the acts committed, yet if there be substantial doubts as to the reasonable and natural inferences to be drawn from those acts, they should be submitted to the jury: McKee v. Bidwell, 24 P. F. Smith 218; Crissy v. Hestonville Passenger Railway Co., 25 Id. 83.

In the present case, the obstruction complained of was not on a county road in a rural district, but in an avenue in a city, which, in population, ranks third in this Commonwealth. The subject-matter of -the obstruction was an undoubted nuisance. A horse fell and died in this public avenue, about nine o’clock on the morning of the 12th of August. The body was suffered to lie there through all of that midsummer day. One of the witnesses testifies, “ there was such a bad smell” that about nine o’clock in the evening, she sent to the mayor’s office to notify him. At eight or nine o’clock the next morning the carcass remained there, and the injury complained of occurred. That it was well calculated to frighten a horse being driven along the avenue, does not appear to be questioned. The same witness who testified as to the offensive odor says: “many men went back again; couldn’t go past; all the horses got frightened there.” The main ground of the defendant is, that the carcass had not remained there for such an unreasonable time as to create a presumption of negligence on the part of the city in not removing it, especially if not notified. It may be conceded that a dead animal might lie in a public street for so short a time, that it would be the duty of the court to say, as matter of law, the municipality was guilty of no implied negligence in not removing it. We do not, however, think the facts proven here present such a case.

Negligence is the absence of proper care, caution and diligence; of such care, caution and diligence, as under the circumstances, reasonable and ordinary prudence would require to be exercised. It may consist as well in not doing the thing which ought to be done, as in doing that which ought not to be done, when in either case it has caused loss and damage to another: Turnpike Co. v. Rutter, 4 S. & R. 6; Erie City v. Schwingle, 10 Harris 384; McCully v. Clark, 4 Wright 399. Hence, in this case one question to be determined is, whether the municipality, acting through its officials, failed to exercise such reasonable care and diligence in not ascertaining the existence of this nuisance, and in not removing it prior to the injury sustained by the pláintiff. The evidence indicates this nuisance to have been lying in the immediate vicinity of several dwelling-houses. If this be so, it will be a fact for the jury to consider, as well as the extent of travel on the avenue. If it be one on which there is but little travel, and not compactly built upon, no such prompt duty to discover it would be imposed on the public officials as if it were in the heart of the city. Dense population and continuous travel on a street call for more care and watchfulness on the part of the authorities, than over streets not thus populated and used.

This action, however, does not rest on the fact that the carcass emitted' an offensive odor, although that may be a circumstance to consider as bearing on the question of negligence in not removing it; but it rests on the alleged fact that it was negligently suffered to remain an unreasonable time, thereby causing fright to the horse of the plaintiff, and the injury and damage resulting therefrom.

The evidence discloses an active effort, by one living near the nuisance, to notify several officials on the afternoon and evening of the first day; but it appears to have been difficult to find any one to heed the complaint. The plaintiff was guilty of no negligence in not giving notice, for she had no knowledge of the nuisance until the moment at which she sustained the'injury. It is true the declaration does not aver notice to the defendant, which prudence may have dictated should have been done, and which may still be done by amendment; yet it does expressly charge negligence.

The evidence was sufficient to have been submitted to the jury under proper instructions, and the learned judge erred in not taking off the judgment of nonsuit.

Judgment reversed and a frocedendo awarded.