District of Columbia v. Hosea Moulton

• Decision Date: 27 May 1901
• Docket Number: No. 224,224
• Citation: 45 L.Ed. 1237,21 S.Ct. 840,182 U.S. 576
• Parties: DISTRICT OF COLUMBIA, Plff. in Err. , v. HOSEA B. MOULTON
• Court: U.S. Supreme Court

182 U.S. 576

21 S.Ct. 840

45 L.Ed. 1237

DISTRICT OF COLUMBIA, Plff. in Err.,

v HOSEA B. MOULTON.

No. 224.

Argued April 9, 10, 1901.

Decided May 27, 1901.

This action was begun by the defendant in error in the supreme court of the District of Columbia. In substance he asserted in his declaration a right to recover from the District of Columbia a specified sum, upon the ground that by its negligence, on November 26, 1896, he had sustained serious personal injury. The negligence averred consisted in this,—that for a space of two days prior to and including the date named the District had negligently and knowingly left upon a public highway known as Park street a large steam roller, which was calculated to frighten horses of ordinary gentleness; and while plaintiff was driving along said street, with due care, in a carriage drawn by a horse of that disposition, the animal was frightened and rendered unmanageable by the steam roller, and in the struggles of the horse one of the wheels of the carriage was broken, plaintiff was thrown out upon the ground with great force, and he sustained the injuries for which recovery was asked. Defendant filed a plea of the general issue.

The evidence most favorable to the contention of the plaintiff tended to show the following: Park street is a public highway in the northwest section of the city of Washington, commencing at Fourteenth street and running westwardly. For several days prior to the accident in question a steam roller had been used in connection with the work of resurfacing Park street with macadam. This roller was of the kind usually employed in constructing macadamized gravel roads. It had three wheels, the tread of the rear wheel being about 8 feet, which was its extreme width. The machine was about 8 feet long and about 5 or 6 feet high. The smokestack was a little higher than the other part of the machine. While the roller was in use, on the forenoon of the day before the accident hereinafter referred to, it 'broke down.' The nature of the injury to the roller does not appear, otherwise than as it may be inferred, from the fact that the roller was subsequently removed by horse power, that the machinery was simply disabled. On becoming out of order, the roller was placed close to the south curb of Park street, from 20 to 50 feet west of Pine street—a street 50 feet in width—and distant about 900 feet westwardly from Fourteenth street. Over the roller was placed a canvas cover. The roadway proper, at the point where the roller was stationed, was about 28 feet wide, and there was ample room for the passage of vehicles between the roller and the northerly side of Park street.

About 3 o'clock on the afternoon of November 26, 1896 (Thanksgiving Day), plaintiff drove into Park street from Fourteenth street, and, as he did so, saw the steam roller. The horse he was driving was one which the plaintiff had owned for several years, was regarded as of an ordinarily gentle disposition, and had several times been driven safely past steam rollers when they were in actual operation. Plaintiff guided his horse, intending to pass by the roller in the space to the right thereof, but on approaching Pine street the horse became restive from the flapping of the canvas cover on the roller, or from some other cause, and when about opposite the middle of Pine street became unmanageable, reared, and upset the vehicle, throwing out and injuring the plaintiff. The evidence also tended to show that other horses in passing the roller had exhibited fear.

The case was tried to a jury, and resulted in a verdict for the plaintiff. On appeal the judgment was affirmed by the court of appeals of the District. 15 App. D. C. 363.

Messrs. Andrew B. Duvall and Clarence A. Brandenburg for plaintiff in error.

Messrs. A. S. Worthington and Charles L. Frailey for defendant in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

That the District of Columbia is not an insurer of the safety of travelers upon its streets is, of course, unquestioned. This being so, we think the lower courts erred in upholding the liability of the District for the injuries sustained by the plaintiff, under the circumstances disclosed in the record.

The steam roller in question had been brought to the place where the accident occurred, for a lawful purpose, viz., that of performing a duty enjoined upon the district to keep in repair the streets subject to its control. The use of an appliance such as a steam roller was a necessary means to a lawful end,—a means essential to the performance of a duty imposed by law. It must therefore follow that if in the legitimate and proper use of such machine, with reasonable notice to the public of such use, an injury is occasioned to one of the public, such injury is damnum absque injuria. Lane v. Lewiston, 91 Me. 292, 294, 39 Atl. 999; Morton v. Frankfort, 55 Me. 46; Cairncross v. Pewaukee, 78 Wis. 66, 10 L. R. A. 473, 47 N. W. 13, commenting upon and explaining Hughes v. Fond du Lac, 73 Wis. 380, 41 N. W. 407. Conceding that the roller was an object calculated to frighten horses of ordinary gentleness, yet, at the most, the liability of the municipality for negligently permitting such objects to remain within the limits of a highway, if it exists, must primarily be dependent upon the fact that they are unlawfully upon the highway.

The sole negligence complained of in the declaration was averred to consist in keeping the steam roller in question on Park street for the space of two days, so as to be a public nuisance and dangerous to travelers passing along said street with their carriages and horses. There was no allegation that the roller, in consequence of its being disabled, presented such a changed appearance that the danger of its frightening an animal was enhanced. Nor was there any averment that the negligence was committed in the use of the canvas covering, and no proof was offered on the trial tending to show that such a cover was not the means usually employed to protect steam rollers from the weather when they were lawfully on the street and for the time being not in use.

Where but one inference can reasonably be drawn from the evidence the question of negligence or no negligence is one of law for the court. Northern P. R. Co. v....