Bodge v. Philadelphia

• Decision Date: 22 April 1895
• Docket Number: 299
• Citation: 167 Pa. 492,31 A. 728
• Parties: Frank R. Bodge v. Philadelphia, Appellant
• Court: Pennsylvania Supreme Court

31 A. 728

167 Pa. 492

Frank R. Bodge v. Philadelphia, Appellant

No. 299

Supreme Court of Pennsylvania

April 22, 1895

Argued April 4, 1895

Appeal, No. 299, Jan. T., 1895, by defendant, from judgment of C.P. No. 3, Phila. Co., March T., 1893, No. 348, on verdict for plaintiff. Affirmed.

Trespass for personal injuries.

At the trial it appeared that on Feb. 27, 1893, plaintiff walked up Seventeeth street in the city of Philadelphia, and when he got to the south side of Market street he stopped at the corner, looked up and down, and seeing no vehicle near him that caused him to expect any danger, he proceeded to cross Seventeenth street, and had more than half crossed the street when he was suddenly knocked down and run over by a team driven by one of the employees of the electrical bureau of the city. This team had come into Seventeenth street from Filbert street which was about two hundred feet north of Market street. The testimony of plaintiff and one other witness, was that when plaintiff was struck, the horse pulling the wagon was galloping. The court charged in part as follows:

"The city of Philadelphia, the defendant in this case, sets up as the first proposition of its defense the point that it is not liable for the negligent acts of the employees and officers of the Electrical Bureau, upon the ground that that bureau was not a department of the municipal government, but was constituted solely for the purpose of protecting the lives and property of the citizens, and in this respect was in the performance of a voluntary duty; and hence, if injury occurred through the negligence of any one employed by that department, the city could not be held liable; but the evidence introduced by the ordinances of councils, and the evidence of the assistant manager or superintendent of that department shows that that department derives a revenue which is paid into the city treasury, by reason of certain grants or privileges to private citizens and private corporations and that, therefore, its management and conduct contributes to the income of the city; and hence, for that reason, I, in the first instance, and for the purpose of this case, rule that the city is responsible for the acts of the employees of this department.

"Its employees are the servants of the city in the performance of municipal duty, for the benefit of the city, and hence we must come to the real merits of the case."

Defendant presented this point:

"Under all the evidence in this case, your verdict must be for the defendant. Answer: Refused."

Verdict and judgment for plaintiff for $1,000. Defendant appealed.

Errors assigned were (1) refusal of defendant's point, quoting it; (2) in charging the jury that the Electrical Bureau was not a branch of the police power of the municipality, and that the city of Philadelphia, the defendant, was answerable in damages for the negligence of that bureau.

The judgment is affirmed.

Leonard Finletter, assistant city solicitor, Charles F. Warwick, city solicitor, with him, for appellant, cited: Rosenberry v City, 7 W.N.C. 558; Freeman v. City, 7 W.N.C 45; Elliott v. City, 129 Pa. 570; Kies v. City, 26 W.N.C. 112; Knight v. City, 15 W.N.C. 307; Western Union Telegraph Company v. City, 22 W.N.C. 39; Alcorn v. City, 44 Pa. 348; Stull's App., 11 W.N.C. 350; Boyd v. Ins. Patrol, 113 Pa. 270; Northampton Co. v. Lafayette College, 128 Pa. 132; Philadelphia v. Woman's Christian Assn., 125 Pa. 572; Episcopal Academy v. Philadelphia, 150 Pa. 565.

Michael J. Ryan, Mark W. Collet with him, for appellee, cited: Philadelphia v. Gilmartin, 71 Pa. 140; Kibele v. Philadelphia, 105 Pa. 41; The Giovanni v. Philadelphia, 59 F. 303; Briegel v. Philadelphia, 135 Pa. 451; Norristown v. Moyer, 67 Pa. 355.

Before STERRETT, C.J., GREEN, MITCHELL...