Park Street is a public highway in the northwest section of the
City of Washington. For some days before the accident which was the
ground of this action, a steamroller had been used in connection
with the work of resurfacing the street with macadam. This roller
became disabled, and was placed close to the south curb of the
street, a canvas cover was placed over it, and it was left therefor
two days. On the second day, the horse of the plaintiff in error,
being driven along the street, became restive from the flapping of
the canvas
cover, reared, and upset the vehicle, and threw out
the plaintiff, injuring him. Held that the District of
Columbia was not liable for the injuries which the plaintiff so
suffered.
Page 182 U. S. 577
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
steamroller, 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 steamroller,
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 steamroller 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
eight feet, which was its extreme width. The machine was about
eight feet long and about five or six 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 twenty to fifty feet west of Pine Street -- a street
fifty feet in width -- and distant about nine hundred feet
westwardly from Fourteenth Street. Over
Page 182 U. S. 578
the roller was placed a canvas cover. The roadway proper at the
point where the roller was stationed was about twenty-eight 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 steamroller. 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 steamrollers 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.
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 steamroller in question had been brought to the place where
the accident occurred for a lawful purpose --
viz., that
of
Page 182 U. S. 579
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 steamroller 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;
Morton v. Frankfort, 55 Me. 46;
Cairncross
v. Pewaukee, 78 Wis. 66, commenting upon and explaining
Hughes v. Fond du Lac, 73 Wis. 380. 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 steamroller 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 steamrollers 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 Pacific Railroad Co. v. Freeman,
174 U. S. 379,
174 U. S. 384;
Metropolitan Railway Co. v. Jackson, 3 App.Cas.193. It is
only where the evidence is such that reasonable men may fairly
differ as to the deductions to be drawn therefrom that the
determination of the fact of negligence should be submitted to a
jury.
Warner v. Baltimore & Ohio Railroad,
168 U. S. 339,
168 U. S. 348.
The question which here arises, then, is
Page 182 U. S. 580
did the evidence justify the trial court in permitting the jury
to determine whether or not in allowing the disabled roller to
remain at the place referred to, under the circumstances stated,
the District negligently and unlawfully obstructed the highway?
We shall assume that the period when the steamroller became
unserviceable while in use on Park Street was the forenoon of the
day prior to the accident, as claimed by the plaintiff. The right,
however, to use a steamroller upon a public street for the purpose
of the repair of such street we think necessarily includes the
right to retain the roller upon the street until a reasonable time
after the necessity for the use of the machine has terminated, in
the meantime exercising due care in the deposit of the machine when
not in use, and giving due notice and warning to the public of the
presence of such machine if travel upon the street is permitted. We
can perceive no difference in principle between using and keeping a
steamroller on the streets until the completion of a particular
work and the maintaining a lawful excavation, such as for the
construction of a sewer or of an underground road, and the use of
an engine, derrick, etc., in connection with the hoisting of earth
from an excavation. The appliances used in connection with such
excavations, even though calculated to frighten horses of ordinary
gentleness not familiar with such objects, undoubtedly may be
retained at the place where needed until the necessity therefor has
ceased, and the circumstance that such appliances become
temporarily disabled cannot, in reason, be held to affect the right
of the municipal authorities to keep such machinery on the works
until, in the ordinary course of events and in the exercise of a
reasonable discretion, it is found convenient either to there make
the needed repairs or to remove the appliances elsewhere for that
purpose. Now the only inference warranted by the record is that,
when the steamroller in question got out of order, it was being
used upon the street, and the necessity for its further use
continued to exist. Had the machine not broken down, or had needed
repairs been made to it at the place where the roller was
deposited, it might lawfully have been allowed to remain upon the
street while its further use was required, and until it was
reasonably convenient to remove it. Under
Page 182 U. S. 581
such a state of facts as has been detailed, there was nothing
either in the circumstance of the disabling of the machine or in
the detention warranting the inference that the right to leave the
roller upon the street over a legal holiday did not exist, and that
an illegal use of the highway had originated. It follows that the
facts in evidence respecting the keeping of the roller on Park
Street during the period referred to did not justify the submission
to the jury of the question whether the District was negligent in
so keeping the machine, as it could not reasonably have been
inferred that the employees of the District were negligent in
failing to remove the machine before the occurrence of the
accident.
As respects the notice owing to the plaintiff of the presence of
the roller, we agree with the opinion of the Supreme Judicial Court
of Maine in
Lane v. Lewiston, 91 Me. 292, that, where a
steamroller is allowed to remain upon a municipal highway, it is
requisite that the municipality causing the obstruction should give
reasonable notice to the traveling public of its presence, but that
a view of the obstruction itself in time to avoid it without injury
amounts to notice. In other words, as stated by the Maine court,
"no one needs notice of what he already knows," and "knowledge of
the danger is equivalent to prior notice." 91 Me. 296. That the
plaintiff had notice of the presence of the roller on Park Street
in ample time to have avoided it is undisputed. When he turned from
Fourteenth Street into Park Street it, was broad daylight, there
was nothing to obstruct his view westward, and in fact he testified
that the roller was in plain sight. He was not induced or directed
by the agents of the District to proceed past the roller. He knew
that such objects sometimes frightened horses, but, from his
acquaintance with the disposition of his horse, he believed that he
could control the animal and drive safely past the roller, and he
voluntarily undertook to do so. Now it seems clear -- particularly
as the danger was neither hidden nor concealed -- that the District
was under no obligation to restrain the plaintiff from attempting
to pass, either by closing Park Street or by other means. The
District was not bound to presume that it would be
necessarily hazardous to attempt to drive past the roller,
stationary
Page 182 U. S. 582
and quiet as it was, and familiar as horses in a large city
usually are to the sight and sounds of electric and cable cars and
horseless motors. The District, at best, was only chargeable with
notice that the roller was an object which might frighten some
horses of ordinary gentleness, not that it would inevitably do so.
It was bound to give sufficient warning to drivers of the presence
of the roller in time to enable them to avoid passing it, if
desired. The District, however, had a right to assume that a driver
of mature age was familiar with the habits and disposition of his
horse, and was possessed of the common knowledge respecting the
tendency of steamrollers to occasionally frighten such animals. The
roller being lawfully on the street, the District was not bound to
guard against the consequences of a voluntary attempt to drive by
this roller. Certainly, if a driver believed that it would not be
the natural and proper consequence of such an attempt that his
safety would be endangered, the District ought not to be charged
with notice that the attempt would be dangerous either to life or
to limb.
The foregoing observations sufficiently indicate the errors
committed by the trial court in the instructions given to the jury
and in the refusal to give requested instructions, to which
exceptions were noted. It suffices to say in conclusion that the
trial court erred in refusing to instruct the jury, as requested,
that, upon the whole evidence in the case, their verdict should be
for the District. As said by this Court, speaking through Mr.
Justice Blatchford, in
Schofield v. Chicago, Milwaukee &
St. Paul Railway Co., 114 U. S. 615,
114 U. S.
618:
"It is the settled law of this Court that, when the evidence
given at the trial, with all the inferences which the jury could
justifiably draw from it, is insufficient to support a verdict for
the plaintiff, so that such a verdict, if returned, must be set
aside, the court is not bound to submit the case to the jury, but
may direct a verdict for the defendant.
Improvement Co. v.
Munson, 14 Wall. 442;
Pleasants v.
Fant, 22 Wall. 116;
Herbert v. Butler,
97 U. S.
319;
Bowditch v. Boston, 101 U. S.
16;
Griggs v. Houston, 104 U. S.
553;
Randall v. Baltimore & Ohio Railroad
Co., 109 U. S. 478;
Anderson County Comm'rs
v.
Page 182 U. S. 583
Beal, 113 U. S. 227;
Baylis v.
Travelers' Insurance Co., 113 U. S. 316."
The judgment of the Court of Appeals of the District of
Columbia is reversed with instructions to that court to reverse the
judgment of the Supreme Court of the District of Columbia and to
grant a new trial.
