City of Allegheny v. Zimmerman

• Decision Date: 05 January 1880
• Citation: 95 Pa. 287
• Parties: City of Allegheny <I>versus</I> Zimmerman.
• Court: Pennsylvania Supreme Court

Page 287

95 Pa. 287

City of Allegheny versus Zimmerman.

Supreme Court of Pennsylvania.

November 6, 1879.

January 5, 1880.

November 6th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. STERRETT and GREEN, JJ., absent

Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1879, No. 89.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

W. B. Rodgers, City Solicitor, for plaintiff in error.—The question of nuisance or no nuisance is for the jury, to be determined with reference to all the special circumstances: Hopkins v. Crombie, 4 N. H. 620; Bryant v. Biddeford, 39 Me. 193; Smith v. Wendell, 7 Cush. 498; Vinal v. Dorchester, 7 Gray 421; Howard v. N. Bridgewater, 16 Pick. 189; Graves v. Natick, 35 N. H. 257; 4 Id. 625; Drake v. Lowell, 13 Metc. 292; Day v. Milford, 5 Allen 98; Norristown v. Moyer, 17 P. F. Smith 355; Fairbanks v. Kerr, 20 Id. 86.

If the province of the jury in these inquiries is as extensive as we suppose, it follows that the court erred in charging that a staunch mast, erected with the assent of the owner of the fee, outside of the travelled way, in a not much frequented and well-lighted street sixty feet wide, was a nuisance per se. And if we are upheld in our contention that the city has the right (subject to appeal to the proper judicial tribunal) to allow all such uses of the public highway as custom and the public good require (Angell on Highways, sect. 244) then it would seem that our offers to prove a custom sanctioning these erections were relevant, and should not have been rejected.

We admit the principle that where a person has deliberately done or sanctioned an act that necessarily creates a nuisance no amount of diligence in the manner of doing it will exonerate him from liability for all immediate and natural resuls of his unlawful act or acquiescence: 2 Sharswood's Blackstone 152 n. What we contend for is, that he cannot be mulcted in damages for remote consequences: Meckling v. Kittanning Bridge Co., 1 Grant 416; Flanegan v. Philadelphia, 8 Phila. 110; Pennsylvania Railroad Co. v. Weber, 22 P. F. Smith 54; Norristown v. Moyer, supra; Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353; McGovern v. Lewis, 6 Id. 231; Morrison v. Davis, 8 Harris 171; Megraw v. Stone, 3 P. F. Smith 436; Dubois v. Glaub, 2 Id. 243; Davis v. Dudley, 4 Allen 557; Alger v. Lowell, 3 Id. 398; Hey v. Philadelphia, 31 P. F. Smith 44; Rice v. Montpelier, 19 Vt. 490; Hixon v. Lowell, 13 Gray 59.

W. D. Moore, for defendant in error, cited Erie City v. Schwingle, 10 Harris 388; Norristown v. Moyer, supra, and Woods on Nuisances, p. 82, sect. 78, and p. 780, sect. 774.

Mr. Justice MERCUR delivered the opinion of the court, January 5th 1880.

This was an action in case to recover damages for the injury which the defendant in error sustained in one of the streets of the city of Allegheny.

In September, prior to the election of 1876, a "Liberty Pole" was erected in the street by a large number of citizens, as expressive of their political convictions. The street was sixty feet wide, and and the pole stood about eight feet from the curbstone and four feet from the gutter, in front of the house of one Myers, who participated in its erection. It consisted of three pieces firmly spliced together and securely held by bands and bolts. It was otherwise secured in place by ropes tied to the chimneys of neighboring houses. It stood for some three or four weeks, when in a severe storm and gale the ropes appear to have broken, and the pole broke off some forty feet above the ground. The upper part fell, breaking into several pieces, one of which struck the defendant in error, a boy about eight years old, who was standing on the sidewalk on the opposite side of the street.

The court below held the erection of this pole on the street a nuisance per se, and if the city authorities, whose duty it was to remove it, had knowledge of its being there and allowed it to remain, and the defendant in error, without negligence on his part, was injured by its falling, the city was liable. The correctness of this view presents the main question in the case.

Any unreasonable obstruction of a highway is a public nuisance, for which an indictment will lie. It is not, however, every obstruction in a highway that constitutes a nuisance per se. When it is not, and whether a particular use, is an unreasonable use and a nuisance, is a question of fact to be submitted to a jury. Highways are intended for, and devoted to, the purpose of public travel, and every person may exercise that right, but in a reasonable manner. Due regard must be had to other rights. Thus stone, brick, sand and other materials necessary to be used in building may be placed in the street in the most convenient manner and suffered to remain for a reasonable time. This may be said to result from necessity in building. But the right to partially obstruct a street does not appear to be limited to a case of strict necessity, it may extend to purposes of convenience or ornament, provided it does not unreasonably interfere with public travel. Thus public hacks, by authority of the municipality, may stand in particular parts of the streets awaiting passengers, although the public are thereby excluded from using that part of the street most of the time. So shade trees may stand between the sidewalk and the central part of the street without constituting a nuisance per se. They may become a nuisance by disease or decay, yet the mere partial obstruction of a part of the street, when in fact such obstruction does not interfere with the public use, does not create a nuisance. It does not work that hurt, inconvenience or damage to the public necessary to constitute the offence.

The erection of liberty poles appears to have been almost coeval with the birth of our nation. As the name imports, they were erected to symbolize our liberties and as a mode of proclaiming that we had thrown off all allegiance to the government of Great Britain. At first they appear to have been used as expressive of concurrence in the principles embodied in the Declaration of Independence. As time passed on, they began to be erected by each political party of the country to express its greater devotion to the rights of the people. As the object of their erection was patriotic and with a view of inciting a spirit calculated to advance the public welfare, they were placed on highways and public squares. The people so desired it. The municipal authorities assented to it. It is a custom...