Hunt v. Graham

• Decision Date: 26 July 1900
• Docket Number: 162-1900
• Citation: 15 Pa.Super. 42
• Parties: Hunt v. Graham
• Court: Pennsylvania Superior Court

15 Pa.Super. 42

Hunt v. Graham

No. 162-1900

Superior Court of Pennsylvania

July 26, 1900

Argued April 30, 1900 [Syllabus Matter]

Appeal by defendants, in suit of Julius Hunt against W.R. Graham et al., trading as the Sharpsburg Sand Company, from judgment of C.P. No. 1, Allegheny Co.-1898, No. 519, on verdict for plaintiff.

Trespass. Before Slagle, J.

It appears from the record that this was an action brought by a father to recover damages for his loss by reason of the death of his son, fifteen years and five months old, and alleged to have been caused by the negligence of defendant. The boy was drowned whilst bathing in the Allegheny river, and it was alleged that he drowned in a sand hole made by the defendants' sand boat some time previous in excavating for sand in the river in front of the borough of Aspinwall.

Defendants submitted the following points:

[1. Under the pleadings and evidence in this case, the verdict should be for the defendants. Answer: Refused.]

[2. The right to dig and remove sand and gravel and materials from the bed of a navigable stream is paramount to the right to bathe in such stream, and is invested with a higher degree of importance for the purposes of trade and the right of individuals to bathe in such stream is of trifling importance compared with the right to dig and remove sand and gravel and other materials. Answer Refused.]

Verdict and judgment for plaintiff for $ 400. Defendants appealed.

Errors assigned were refusal of defendants' points, reciting points and answers.

W. B. Rodgers, with him W. L. Burd, for appellants. -- The defendants were engaged in a lawful business and one that is valuable to the community. In removing the sand they were not trespassers, but doing what the state allowed them to do. Their act was one which improved the river as a navigable stream. It is entirely impracticable, as well as unheard of, to mark the places where sand is taken out. A system of buoys, if adopted, would be obstructions to navigation, and could not be fastened to anything solid at the bottom of the stream. Filling up the space is equally impracticable; earth filling would speedily be dissipated, and rock would be injurious to the bed of the river, and either or any filling would be a nuisance.

So the plaintiff's position would be a complete denial of the right to remove sand and gravel, and would deprive warrantees of the rights given them by the state to mine for minerals in the beds of streams.

The true principle, I submit, is this: The right to remove sand and gravel from the beds of rivers is useful for navigation, as it deepens the channels; it is a valuable right on account of the commercial importance of the sand and gravel; the right to bathe in thickly settled communities, as this is, is seldom used and is against public morals and common decency; and that he who enters the river to walk on or over its bed is presumed to know of the exercise of the right to remove sand and gravel and take the risks. He undoubtedly knows he is not walking on a smooth and uniform surface, but upon a surface which is constantly changing by action of water and ice. It may be that the rule is different at known bathing places, but then the liability, if any, would be as for creating a pitfall, and there would be an element of recklessness or malice in the case.

The deceased was guilty of contributory negligence and the court should have said so, as a matter of law.

Even if this was the case of the use of an ordinary highway, there was evidence of contributory negligence. But we all know that the beds of rivers present inequalities, caused by the current, ice and other natural causes. He who permits himself to walk on the bed of a river takes these risks. He knows the bed of the river is not a paved highway for travel. Either man or boy who walks there and is unable to swim is in a place of manifest danger.

Samuel B. Griffith, for appellee. -- The question of defendants' negligence and plaintiff's contributory negligence in this case were questions of fact for the consideration of the jury under proper instructions.

How loath the Supreme Court of Pennsylvania have been to interfere with this province of the jury will be shown by an examination of the following cases: Hanover R. R. Co. v. Coyle, 55 Pa. 396; Penna. R. Co. v. Goodman, 62 Pa. 329; Penna. R. Co. v. Weber, 76 Pa. 157; Schum v. Penna. R. Co., 107 Pa. 8.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ. Rice, P. J., dissenting.

OPINION

ORLADY, J.

This suit was brought to recover damages for the death of the plaintiff's son, which was alleged to have been caused by the defendants making and leaving a hole in the bottom of the Allegheny river. The defendants were sand diggers and conducted their business by means of a steam elevator dredge, which was so arranged that scoops or buckets were lowered through the water to the river bottom, and by gravity or artificial force were driven into and gathered the sand and gravel, which was then hoisted and screened, the sand being deposited in a scow or barge for trade purposes and the larger stones and gravel falling back into the river at the side of the dredge. On July 23, 1899, at about 5 o'clock in the afternoon, the plaintiff's son, aged fifteen and a half years, and accompanied by another boy of about the same age, went into the Allegheny river between the city of Pittsburg and the borough of Aspinwall for the purpose of washing and bathing; after removing his shoes, he waded out to a gravel bank about four feet from the shore, where he took off his clothing and entered the river. Having waded about for a short time in water which reached to his arm pits, he was seen by his companion to be in a drowning condition at a point about ten feet below the gravel pile and about twenty to twenty-five feet from the bank. His body was recovered the following day near to the place where he sank, and in a sand hole which had been made on April 27 previous, by a steam dredge which was owned by the defendants. The boy had been bathing in the river at the same place on the Thursday before, and when he entered the river on July 23, his attention was called to the many sand holes forty or fifty feet up the stream, which had been made by the sand dredges. The usual depth of water in that immediate vicinity was four or five feet, and there was no evidence that either of the boys knew of the existence of the particular hole in which his body was found. The evidence that the defendants made this sand hole, or that it was the proximate cause of the boy's death, is very meager and not at all convincing, but for the purpose of this case we assume it to be sufficient.

Were the defendants guilty of negligence in excavating sand from the river bed at this place and leaving the hole unmarked and unprotected? It is not pretended that the acts of the defendants in removing the sand were in any sense unlawful. They were not trespassers and the evidence shows that their operations were recognized as an important business industry, which gave employment to about twelve steam dredges in the two rivers. The work did not interfere with navigation but, if properly conducted, was an aid to it, and did not in any way affect the volume or purity of the water in its natural flow. The sand secured was used in various trades, in furnaces, in building operations, and in the construction of concrete streets and pavements. It was clearly shown that it was not possible or practicable to fill up the holes made in removing the sand, nor was it feasible to locate the sand holes by floats or signals.

The plaintiff urges that as the Allegheny river is a navigable stream, all of the people have a right to bathe therein, and that the legal duty to the public was violated in not filling or marking the holes made in the river bottom. The highest right in a navigable stream is that in the interest of commercial traffic on its waters; this right is superior to the right of fishing (Flanagan v. Philadelphia, 42 Pa. 219; Cobb v. Bennett, 75 Pa. 326); to the enjoyment of property in an oyster bed; to ferry privileges to the right to lay pipes in the stream, and to use and maintain bridges, though in some places it has been held to be coextensive with the latter (16 Am. & Eng. Ency. of Law, 260, notes); and to the right to take water from the stream for manufacturing purposes: Philadelphia v. Gilmartin, 71 Pa. 140; Gallagher v. Philadelphia, 4 Pa.Super. 60. It has been held...