Gallagher v. City of Philadelphia

Opinion by

Wickham, J.,

The plaintiff was the lessee and master of a canal boat plying upon the artificial navigation system of the Schuylkill river, between Port Clinton and tide water wharfs, below this system, in Philadelphia. During the summer and fall of the year 1895, the plaintiff’s loaded boat was several times detained on her downward trips, at different points above the last dam in the Schuylkill, by reason of low water; and, as he avers, also lost time in unloading, at the wharfs above mentioned, because other boats, which had likewise been detained above by lack of sufficient water, arrived there late before him.

At the trial the plaintiff through his testimony, fixed the whole number of days’ detention at nine, five whereof covered the time alleged to have been lost at the consignment wharfs, and he claimed damages on the basis of $8.00 per day. He received a verdict for the full amount of his claim, viz, $72.00.

The cause of all the detentions, as averred by the plaintiff and found by the jury, was the pumping of water from the Schuylkill, by the city of Philadelphia, for other than drinking and domestic uses, to such an extent as to prevent navigation. The uncontradicted evidence clearly established the fact, that if the city had drawn water from the stream for drinking and domestic uses only, navigation would not have been impeded in the least.

The able and learned trial judge instructed the jury, in effect, that the city could lawfully take any quantity of water from the stream, necessary for drinking and other domestic uses; that the right to take water for other purposes, including manufacturing, was subordinate to the right of those navigating the stream by boats of the usual draught, and that if the plaintiff had suffered delay through the action of the city in pumping water for other than drinking and domestic purposes, he was entitled to recover for the actual, immediate and direct loss thus caused to him. These instructions were so fully in accordance with the decisions in Philadelphia v. Collins, 68 Pa. 106, and. Philadelphia v. Gilmartin, 71 Pa. 140, that it would be a waste of time and words to engage in their vindication here.

The refusal of the offer quoted in the defendant’s first assignment of error, was entirely proper, and is sustained by the. reasoning of Mr. Justice Agnew in the concluding paragraphs of his opinion in PMladelphia v. Gilmartin. The plaintiff’s boat drew several inches less than the standard draught fixed as far back as the year 1846, and less than the draught established later, by experience and usage, for low water navigation. The question, therefore, was not whether the water was lowered by the city to the top of the dam, but whether there was a substantial and injurious interference with ordinary and customary navigation produced by pumping water from the Fairmount pool, for other than drinking and domestic uses.

The third assignment of error complains that the court did not leave it to the jury to determine whether the plaintiff suffered special injury, differing in kind from that inflicted on the general public engaged in navigating the river. The undisputed evidence showed a special and particular injury: Philadelphia v. Collins, supra; Knowles v. Pennsylvania R. R. Co., 175 Pa. 623. It was not necessary, therefore, to submit the question to the jury.

The refusal of the defendant’s third point, which is the subject of the fourth assignment of error, was likewise proper. There was no evidence that “the interruption to navigation was the result of an improper detention of the water,” in the upper pools by the Philadelphia & Reading Railroad Company, exercising the franchise of the Schuykill Navigation Company. On the contrary, it clearly appears, that the officers in charge of the navigation system, exercised a high decree of care, skill and prudence in its management, and used the water, at their command, judiciously, in order to maintain navigation, as far as possible, from one end of the system to the other. It is also apparent that their efforts would have been successful, had the city, during the period of drought, not drawn water from the Fairmount pool to an extent inconsistent with its rights. But, were the facts otherwise, the company and the city would be joint tort-feasors, and the default or wrong-doing of one would not enable the other to escape its liability to parties navigating the stream, as is pointed out in Philadelphia v. Collins, supra.

The instruction asked for in defendant’s fourth point was substantially given in the general charge, hence the fifth assignment of error is untenable: Kroegher v. The McConway & Torley Co., 149 Pa. 444.

The defendant’s fifth point, the refusal whereof is the basis of the sixth assignment of error, was properly answered. As the learned trial judge well said: “The distinction between manufacturing purposes and domestic purposes is a very clear one indeed, and nothing can be plainer than the fact that manufacturing uses do not become domestic uses, because the product of the manufacture is used for domestic purposes.” But, even if the law were as contended for in this point, the latter should still have been refused, there being no evidence from which the jury could approximately estimate how much of the water employed for manufacturing was used in producing articles used or intended to be used for domestic purposes. The views here expressed are also fully applicable to the ninth assignment of error.

The seventh assignment is sufficiently disposed of by what is said concerning the first. It may be added, however, that the raising of the dam, therein mentioned, was done conjointly by the city and the navigation company, the latter never in any manner relinquishing its rights and control. It must also be borne in mind, that the public, navigating the Schuylkill, have rights which neither the company nor the city can abridge or take away.

The defendant’s seventh point was not refused, as is alleged in the eighth assignment of error. The answer to the point was an affirmance thereof and could not have been understood in any other sense by the jury. A judge is not bound “ to affirm correct legal propositions in the exact phrase asked for: ” Kroegber v. The McConway & Torley Co., supra; Commonwealth v. McManus, 148 Pa. 64.

The tenth and last assignment is overruled for reasons already given or suggested.

We need not dwell on the attempt made by the defendant’s counsel, in their printed argument, to convict the court below of error in not excluding, from the consideration of the jury, the plaintiff’s claim for damages caused by the delay at the consignment wharfs. No assignment of error bears on this matter, and moreover the defendant’s seventh point, asked that it should be submitted to the jury. It is now too late to complain that the loss resulting from such delay was not sufficiently proximate to be considered. An examination of the charge shoves too, that in a general way the rule as to the measure of damages was correctly stated.

On the whole we are satisfied that nothing is presented by the assignments of error to justify reversal.

Judgment affirmed.