Pittsburgh, C. & St. L.R. Co. v. Hood

• Decision Date: 15 May 1899
• Docket Number: 685.
• Citation: 94 F. 618
• Parties: PITTSBURG, C. & ST. L. RY. CO. v. HOOD.
• Court: U.S. Court of Appeals — Sixth Circuit

94 F. 618

PITTSBURG, C. & ST. L. RY. CO. v. HOOD.

No. 685.

United States Court of Appeals, Sixth Circuit.

May 15, 1899

This was an action to recover damages for the death of plaintiff's intestate, based upon the ground that the injury which resulted in death was caused by the wrongful act and negligence of the defendant. The injury was sustained on a public landing in the city of Cincinnati, on the morning of September 19, 1895, at 6:50 a.m. This public landing is an open space on the river front, and is a large landing equal in dimensions to about two ordinary city blocks. It extends from the river across the line of Water street to the line of Front street, and from the east line of Broadway crossing Sycamore street to the west line of Main street. A railroad track crosses the north end of this public landing in the line of Front street. A spur track branches off from the south side of the main track in the line of Sycamore street extending westerly, and parallel with the main line, into Water street. These are called the 'connection tracks,' by means of which passengers and freight are transferred across the city between the east and west systems of railroad terminals. The tracks were constructed under the authority and provisions of a city ordinance, by which the plaintiff in error acquired the right to operate only during the nighttime and until 6 o'clock in the morning. The material parts of the which said track may be used for the transmission of freight and passengers shall be as follows From the 1st of April to the 1st of October from 8 o'clock p.m. to 6 o'clock a.m., and from the 1st of October to the 1st of April from 7 o'clock p.m. to 6 o'clock a.m., and no cars shall be drawn on the track at any other hours. The companies to have the privilege of using the steam or horse power, as they may, in their judgment think best; subject, however, to the approval of the city council. But in no case shall cars be drawn through the city at a greater speed than six miles per hour. ' The public landing, during the daytime, was used for all purposes to which a public landing is usually devoted, there being a wharf at the foot of Sycamore street, including its use by wagons, drays, and other suitable vehicles in the transportation of freight, which was discharged and received at the landing. At the hour above mentioned a freight train operated by plaintiff in error entered the public landing, and was pushed into the Water street spur track, slowing up and stopping its head end in Water street, with its rear end at or near Sycamore street. At this time the plaintiff's intestate was driving a two-horse wagon, loaded with tobacco, from the wharf diagonally across the public landing in the direction of Main street. He stopped at a distance variously estimated, but which may be put at from 30 to 60 feet from the train. His team was turned until it headed west, and the plaintiff's intestate then began to unhitch the horses, his purpose being to leave the wagon at that place, and drive the horses back to the wharf to aid in pulling the next wagon up the grade. Just at this moment a movement of the train was made, letting off steam, and otherwise causing much noise. The horses became frightened, and Hood went quickly to their heads in the effort to control them. The horses swung around suddenly, and plunged forward, dragging Hood as they went, and finally running over him, and inflicting the injuries from which he died. The main facts attending the accident as thus given are undisputed. The case, as stated in the petition, proceeded upon the grounds: First, that the cars were being operated unlawfully upon the public landing at the time, in violation of the ordinance; and, second, that the horses were frightened and the accident caused by the negligent manner in which the train was operated. In the court's instruction to the jury the case was thus stated: 'The plaintiff claims that he is entitled to recover damages from defendant-- First, because defendant's train, which frightened Hood's horses, and thereby caused the injuries of which he died, was unlawfully upon the public landing the violation of the ordinance; second, because the frightening of the horses, and the subsequent injuries to Hood, were caused by the negligence of the defendant in operating the train. ' Verdict was returned in plaintiff's favor for the sum of $4,500. A motion for a new trail having been overruled, judgment was duly entered upon the verdict, and to revise that judgment this writ of error is sued out.

Robert Ramsey, for plaintiff in error.

Alfred Mack, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

CLARK District Judge, after stating the case as above, .

In relation to the first ground on which the right to recover was rested, the court charged the jury as follows:

'It being conceded, gentlemen, that the train of the defendant was unlawfully upon the public landing, in violation of the ordinance forbidding it to be there at all at that time, and that it frightened the horses of Hood and thereby caused the injury of which Hood died, a prima facie case of negligence on the part of the defendant is presented, which will entitle the plaintiff to recover, unless it appears from the evidence that Hood was himself in fault, and that he was guilty of negligence which directly contributed to the injury.'

This instruction is assigned for error, and is the only ground relied on in argument for reversal, and presents the only serious question which could arise on this record. The contention of plaintiff in error is: First, that, treating the ordinance in question as a valid police regulation, its violation is only evidence of negligence, which should have been submitted to the jury; and, second, that the ordinance was a mere contract, and not a police regulation, and that its violation was a breach of private contract, and not a violation of law. In determining the true construction and effect of this ordinance, it will be well to keep in view the law which would control the case in the absence of such an ordinance. The public landing on which the accident occurred is a public highway in the fullest sense, and must be so regarded for all legal purposes, and the right to occupy such a public highway with a railroad is an extraordinary privilege. Legislative authority must exist to warrant the occupation of such a highway be express grant or by necessary implication. 1 Wood, R.R. (2D Ed.) 746; 2 Dill.Mun.Corp. (4th Ed.) § 707; Memphis City R. Co. v. Mayor, etc., of City of Memphis, 4 Cold, 406; People's Pass. Ry v. Memphis City R. Co., 10 Wall. 38; Barney v. City of Keokuk, 94 U.S. 324; 3 Cook, Corp. § 713. The legislature may, of course, instead of granting by direct act or general legislation the power to railroad companies to occupy streets for the purpose of constructing and operating railways thereon, delegate to municipalities the right to consent to such use of the streets. In the absence of legislative authority, either direct or through the authority action of a municipality, the construction and use by a railroad company of its road longitudinally on a highway or street is a public nuisance, and the company is subject to indictment for creating and maintaining such a nuisance. City of Knoxville v. Africa, 47 U.S.App. 74, 23 C.C.A. 252, and 77 F. 501; 2 Dill.Mun.Corp. (4th Ed.) § 708; 1 Wood,Nuis,(3d Ed.) pp. 96, 97; Com. v. Old Colony & Hussner v. Railroad Co., 114 N.Y. 433, 21 N.E. 1002; 1 Wood,Nuis. (3d Ed.) §§ 300, 303. Such unauthorized occupation and use of streets and highways, being wrongful, not only creates a nuisance, but constitutes a railway company a trespasser, and renders it liable for such damages as proximately result to persons or property in absence of contributory negligence. If authority is given to construct a railroad upon the streets of a city or town, provided the company first obtains the consent of the municipal corporation, or where, by the delegation of power from the legislature, the municipality itself grants the right, reasonable conditions may be annexed to the grant and imposed upon the company as to the construction and operation of its road, such as are deemed essential for the protection of the public interest and safety; and, if these are accepted by the railroad company, they are binding upon the parties. 1 Wood,R.R. 748; Pacific R. Co. v. City of Leavenworth, 18 Fed.Cas. 953 (No. 10,649); Richmond, F. & P.R. Co. v. City of Richmond, 96 U.S. 521; 1 Dill.Mun.Corp. (4th Ed.) § 706. It is this legislative authority, derived either immediately or through the authorized action of the municipality, which protects a railway company in the use of streets for railroad purposes from prosecution and suit for a public nuisance; and, when the consent of a city or town is required, the importance of an ordinance like the one in question is apparent. When the ordinance prescribes conditions on which the right is granted, these become binding, and the right to use the streets must be exercised strictly within the provisions of the ordinance. Railroad Co. v. Bingham, 87 Tenn. 522, 11 S.W. 705, is a leading and instructive case upon this subject. Judge Lurton (now one of the judges of this court), delivering the unanimous judgment of the supreme court of Tennessee, said: 'Mr. Wood, in his work upon Railroads, lays down what we regard as the sound and reasonable rule in the following words: 'It may be stated as a general rule that whatever is authorized by statute within the scope of legislative powers is lawful, and therefore cannot be a nuisance. But this must be understood as subject to the qualification that, where an act that would otherwise be a nuisance is authorized by statute,...