Pittsburgh City v. Grier

• Decision Date: 28 September 1853
• Citation: 22 Pa. 54
• Parties: Pittsburgh City <I>versus</I> Grier.
• Court: Pennsylvania Supreme Court

22 Pa. 54

Pittsburgh City versus Grier.

Supreme Court of Pennsylvania.

September 28, 1853.

ERROR to the District Court of Allegheny county.

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Williams and Hampton, for plaintiffs in error.—In the first count is alleged a seizure by defendants, of the wharf, as their private property; the enactment of regulations; the payment of wharfage by plaintiffs; their right, by reason thereof, to a safe landing and anchorage; the duty of defendants to enforce their own regulations; the neglect of their officer, in permitting a pile of metal to lie on the wharf; the necessity consequent thereon of backing out

and exposing themselves, and the injury inflicted, in consequence of that exposure, from a foreign body and from the said metal.

The second count alleges the wharf to be a public one; the control and regulation thereof, and the collecting of fees by defendants; their duty by reason thereof, and their public duty to remove nuisances and obstructions, and to afford safe anchorage thereat, as a public highway; the permitting and authorizing the deposit of metal at an improper place; the landing of plaintiffs; the necessity of exposure, in consequence thereof, and the striking and foundering on said metal.

It was contended that no sufficient cause of action was alleged in the declaration. That case will not lie where the foundation of the action is a contract, and the act complained of is a mere act of non-feasance: Livingston v. Cox, 6 Barr 360. That the first count was substantially in assumpsit, and could not be joined with the second count. It was said that in it was asserted a right, by reason of the payment, to a safe landing and anchorage. It was said that the law does not imply such a right. That a wharf is a place for loading and unloading, and the payment of wharfage implies only that privilege.

It was further contended that no duty on the part of the corporation arose out of the enactment of the ordinance, — that it was a mere private regulation, with which, as the property is alleged to be their own, they might dispense, and that no cause of action arose out of their neglect to enforce it: Boyland v. City of New York, Sand. Rep. 27; Id. 465.

It was contended that the cause of the injury was too remote from the effect. The consequence of the neglect to have the iron removed was the exposure of the vessel; and the consequence of the exposure an injury from a foreign body, with which the corporation had nothing to do, and which was not an obvious or necessary consequence: Morrison v. Davis, 8 Harris 171.

As to the second count. In this the obligation to remove the obstruction is charged as a public duty. If a municipal corporation is liable for an omission to repair or remove a nuisance from a highway, such liability exists only where the duty is absolute and due from it as a corporation: 1 Hill 580; Mayor of Lynn v. Turner, Cowp. 86.

It was also contended that if the wharf was private property, the plaintiffs' remedy would be in assumpsit, and not in case. It was said that case would not lie for a breach of any other than a common law duty, as in the case of an action against a carrier; and not on an allegation of mere non-feasance or neglect: 6 Barr 360.

It was further contended that no legal obligation to reserve the wharf exclusively for the use of boats had been alleged or proven; and also, that if the wharf be a public highway, the defendants would not be liable for an obstruction put upon it by a third person without their authority. Also, that if the piles of metal were exposed to view when the boat came to the wharf, and amounted to an obstruction, or likely to become so in any emergency, the boat should have been placed elsewhere; that there was ample room for it elsewhere when the boat arrived, and sufficient time after the rise commenced to remove it; and that the Court should have instructed the jury that it was the duty of the plaintiffs to have had it removed: 2 Pick. 176-7; 2 Hall 129. That if the officers of the corporation could have anticipated a rise in the river, the officers of the boat could also have anticipated it; and if negligence existed, the parties were in pari delicto, and that where such is the case, neither can recover; also, that if the boat was placed at the wharf without any direction from the wharf-master, the plaintiffs could not recover.

Further, if the boat was not over 150 tons burden, (the tonnage of the Mary Ann was 142 tons), and remained at the wharf more than seventy-two hours (Sunday not included) before the accident occurred, the plaintiff could not recover. This proposition was founded on an ordinance, and the argument was that if third persons can avail themselves of the neglect of the city to enforce their ordinances, such third persons must be held to the same strictness.

Shaler, Stanton, and Gilmore, were for defendants in error.— It was stated that the wharf-master was examined on the trial, and proved that at the time the metal lay on the wharf, he was otherwise engaged than in attending to his duties on the wharf. It was stated that the wharfage had been paid, and that the boat came in at the only place designated for boats which was then unoccupied.

It was said that there was no misjoinder of counts in the declaration. In both, negligence on part of defendants is charged. That in neither count is the payment of wharfage made the foundation of a right to recover. That it was placed on the ground of culpable negligence. In both counts it is declared that the wharf is a public one, and that the defendants by their relation to it were bound to keep it free from obstructions. Though a duty may arise out of the enactment of ordinances relative to the wharf, which are a notice to those engaged in the navigation of the condition in which the wharf may be found, yet there is a higher obligation than springs from such ordinances, imposing a duty which no regulations of its own will enable the corporation to avoid. It was the duty of the corporation, independent of its regulations, to keep the wharf in order as a safe landing; and it is answerable in an action on the case, for direct and particular damage sustained in consequence of its default. Bradby on Distress 132; 3 Barn. & Ad. 77, 23 Eng. Com. Law, 32; 21 Wend. 115; 1 Hawk Pl. Cr. 76, 369; 2 Chit. Cr. Law 333; 352-3; 603-4-5; 3 Burns J. 217; 5 Burr. 2700; Cowp. 86; 4 Black. Com. 167; 11 Wend. 543-4; 1 Railway and Canal Cases 712.

As to the allegation of the remoteness of the injury, it was said that the evidence showed that the boat struck on the metal piles, with such force that it would have sunk without any other cause. But to escape from the metal piles, those in charge of the boat were compelled to push it out into the current, where it was struck by a floating object. But if the injury was caused by the latter, it was contended that it was not too remote to sustain the action: Bacon v. Arthur, 4 Watts 437; Mayor of New York v. Bailey, 2 Denio 433; Cowper 86; 7 Mass. 169; 9 Watts 119, 4 Id. 119; 2 Watts 26; 2 Wharton 539.

It was said that there was no other place on the wharf to land than that occupied by the Mary Ann.

In an action for dockage and wharfage of a public port the defendant may show that the port and wharf were out of repair, whereby he sustained damage: 21 Wend. 110.

The owners of land on the rivers Delaware and Schuylkill have the right to the land between high and low water marks; subject to the right of the public to pass over it in vessels when covered with water: 2 Wharton 539.

For an act of Providence alone the defendants would not be answerable. To fix them with liability for injury done by a flood or storm, there must have been a concurrence of negligence with the act of Providence; and it is for the jury to inquire whether they have used all proper precautions to prevent consequential injury: 4 Rawle 10; 9 Watts 120-1. An action on the case lies on the custom of the realm, against the master of a house, if a fire, accidentally kindled in it, consume the house or goods of another; and this although kindled without the knowledge of the master, and by a servant, guest, or any one else who has entered by his consent: 1 Rol. I. I. 25; 3 Lev. 359; 1 Salk. 319; 4 Rawle 24.

The opinion of the Court was delivered, September 28, by BLACK, C. J.

The vessel of the plaintiffs below, anchored at the Monongahela wharf, when the water was very low. The river rose afterwards, and the vessel was totally wrecked in consequence, as the plaintiffs allege, of certain piles of pig iron which had been negligently permitted to lie on the wharf, a foot above low-watermark, which became covered by the water as it rose, and which compelled the Mary Ann to back out into the stream, where she was struck and stove by some floating body, and sunk across the water log of the wharf, where she broke in two.

Ever since 1816, Monongahela landing has been under the control and supervision of the city corporation. The ordinances of the councils passed in that year, forbade the erection of any private wharf, declared the space between Water street and low water mark to be public property, authorized the appointment of an officer to take charge of it on behalf of the city, and required the payment of wharfage by such vessels as would use it to lade and unlade their cargoes.

The right of the city corporation to take the wharf into their keeping, and to charge a toll or fee for its use, is not denied. The dedication of it to public use by the original proprietor in his plan of the town, the provisions of the city charter, and the uniform exercise of the right for nearly forty years, would have effectually silenced such an objection if it had been made. But the city authorities could not with any grace assert that they had usurped a power forbidden by law, and their adversaries, so far from...