Borough of Du Bois v. Pancoast

• Decision Date: 12 November 1914
• Docket Number: 1887.
• Parties: BOROUGH OF DU BOIS v. PANCOAST.
• Court: U.S. Court of Appeals — Third Circuit

218 F. 60

BOROUGH OF DU BOIS v. PANCOAST.

No. 1887.

United States Court of Appeals, Third Circuit.

November 12, 1914

H. Fred Mercer, of Pittsburgh, Pa., for plaintiff in error.

A. L Cole, of Clearfield, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

J. B McPHERSON, Circuit Judge.

Federal jurisdiction over this controversy depends wholly on diverse citizenship, and the writ of error raises the question whether the plaintiff was a citizen of New York or of Pennsylvania when the suit was brought. The point was distinctly made at the trial and is raised by one of the assignments, although indeed we would be bound to take notice of it on our own motion. Neel v. Penna. Co., 157 U.S. 153, 15 Sup.Ct. 589, 39 L.Ed. 654; Newcomb v Burbank (C.C.A. 2d Cir.) 181 F. 334, 104 C.C.A. 164; Taylor v. Weir (C.C.A. 3d Cir.) 171 F. 636, 96 C.C.A. 438. As the case must go back for other reasons, we need say no more than this: If another trial should take place, and if the evidence then should be substantially the same as the evidence now before us, the question of the plaintiff's citizenship ought to be submitted to a jury with appropriate instructions.

Turning to the merits, we may say at once that in our opinion a binding instruction should have been given in favor of the borough. The evidence tended to prove the following facts:

In October, 1912, a banner of a political party was stretched across one of the principal streets in the borough of Du Bois. One end of the supporting cable was fastened to a chimney that extended above the roof of the Commercial Hotel a four-story brick building abutting on the street. The plaintiff's case against the borough is thus set forth in the statement of claim:

'That it was under the law (the) duty of said defendant to keep said street in a safe condition, so that persons might pass and repass thereon without danger to life or limb and without harm or hindrance.

'That, notwithstanding the duty of said defendant borough, on the said 12th day of October, 1912, the said defendant permitted said street to become and be in a dangerous condition, and permitted a structure in the form of a large structural banner, composed of ropes, cloth, and painting, to be put up and erected over said street, and to be fastened to an insecure fastening in the shape of a brick chimney that stood on the wall of the Commercial Hotel, which fastening was insecure and unsafe and dangerous, and that when said plaintiff was passing along said street, and under said banner, the same fell and the bricks from said chimney were scattered upon said public street or highway, and about and upon said plaintiff,' etc.-- thus doing the injury complained of.

The banner-- which was of considerable size, was made of rope mesh, and carried a portrait on cloth of one of the candidates for president-- had been stretched across the street only a few days before October 12th. It was suspended from a wire rope or cable, and one end of the cable was fastened to the chimney in question. The chimney was an extension of the hotel wall, and was about 21 inches square and probably from 3 to 4 feet in height. The roof of the building was nearly flat, and a cornice extended beyond the chimney about 3 feet, overhanging the sidewalk to this extent. Two turns were taken about the base of the chimney, and a loop was formed by clamping the end to the body of the cable. Witnesses testified that on the day in question the weather was 'very stormy,' and described the wind as 'pretty strong' and as 'unusual.' Whatever may have been the cause of the accident, the chimney broke about 6 or 8 inches above the roof, and the loop probably slipped upward off the chimney, thus letting the banner down. The plaintiff was injured, not by the banner, but by one or more of the falling bricks.

The evidence did not disclose by whose direction the banner was put up. The actual work appears to have been done by employes of the electric company. A short time before the accident the burgess and the chief of police, in passing along the street, saw the banner in place; but they could not see where or how the cable was fastened. The borough did not give permission to erect the banner, but (so far as the evidence showed) the erection of similar objects was not forbidden, either by ordinance or other regulation. No official of the borough inspected the fastening around the chimney. The cable did not break, and the loop did not pull out of the clamp.

In this condition of the evidence, we think the plaintiff was not entitled to recover. We may first observe that the erection of the banner was not in itself unlawful. The practice is common throughout the country, and we are not acquainted with any general rule of law that forbids it. Thousands of banners and flags are displayed over public highways-- many from heavy projecting poles-- not only in every political campaign, but also on many anniversaries and holidays, and (if it be assumed that a municipality has the...