Abraham Wolff v. District of Columbia

• Decision Date: 03 January 1905
• Docket Number: No. 62,62
• Citation: 196 U.S. 152,49 L.Ed. 426,25 S.Ct. 198,1 Ann.Cas. 967
• Parties: ABRAHAM WOLFF, Plff. in Err. , v. DISTRICT OF COLUMBIA,
• Court: U.S. Supreme Court

196 U.S. 152

25 S.Ct. 198

49 L.Ed. 426

ABRAHAM WOLFF, Plff. in Err.,

v DISTRICT OF COLUMBIA,

No. 62.

Argued November 11, 1904.

Decided January 3, 1905.

This is an action for damages for injury caused to plaintiff in error (who was also plaintiff below) by an alleged negligent omission of duty by the District of Columbia.

On the 27th of October, 1895, about 9 o'clock in the evening, plaintiff had occasion to visit Sangerbun hall, house on C street, in the city of Washington. On coming out, and for the purpose of approaching a wagon which was standing in the street, he walked rapidly across the sidewalk and, by falling over a block of stone called a stepping stone or carriage step, which was on the sidewalk near the curb, broke his leg. Some time subsequently he was compelled to submit to its amputation.

The charge against the city was that it was a body corporate and municipal, and had the power, and it was its duty, to keep the sidewalks free of obstructions and nuisances, one of which, it was alleged, said stone was. And further, that it was the duty of the District of Columbia to keep the streets properly lighted. In neglect of both, it was alleged, it did 'allow and suffer' the stone to be securely fastened into and remain upon the sidewalk, and did 'keep and continue' it there during the nighttime of the 27th of October, without a light to show its presence or a watchman to notify wayfarers of its existence. Damages were laid at $25,000. The District of Columbia pleaded not guilty. A jury was impaneled. At the conclusion of the testimony the District moved the court to instruct a verdict for it on the ground that the plaintiff had not made out a case. The motion was granted, and a verdict in accordance with the instructions. A motion for a new trial was made and denied, and the case was then taken to the court of appeals, which affirmed the judgment of the court below. 21 App. D. C. 464.

Messrs. John C. Gittings and D. W. Baker for plaintiff in error.

[Argument of Counsel from page 153 intentionally omitted] Messrs. E. H. Thomas and Andrew B. Duvall for defendant in error.

[Argument of Counsel from pages 154-155 intenionally omitted] Mr. Justice McKenna delivered the opinion of the court:

The first contention of plaintiff in error is that the stone was an unlawful obstruction per se. This is deduced as a consequence from § 222 of the Revised Statutes of the District of Columbia, which reads as follows:

'No open space, public reservation, or other public ground in the city of Washington, nor any portion of the public streets or avenues in said city, shall be occupied by any private person or for any private purpose whatever.'

This section cannot be construed to prohibit putting upon a street any object without regard to its effect on the use of the street. The sweeping character of such a construction need not be pointed out. There are objects which subserve the use of streets, and cannot be considered obstructions to them, although some portion of their apace may be occupied. This is illustrated by a number of cases.

In Dubois v. Kingston, 102 N. Y. 219, 55 Am. Rep. 804, 6 N. E. 273, a stepping stone 3 feet 4 inches in length and 20 inches wide was placed on the edge of the sidewalk. The court observed that the stone was not of unusual size or located in an improper place, and that it would be extending the liability of cities too far to hold them liable for permitting stepping stones on the edge of sidewalks.

Robert v. Powell, 168 N. Y. 411, 55 L. R. A. 775, 85 Am. St. Rep. 673, 61 N. E. 699, was also an action for injuries caused by a stepping stone. The court said: 'There are some objects which may be placed in, or exist in, a public street, such as water hydrants, hitching posts, telegraph poles, awning posts, or stepping stones, such as the one described in this case, which cannot be held to constitute a...