An object which subserves the use of streets need not
necessarily be considered an obstruction, although it may occupy
some part of the space of the street.
The duty of a city to specially illuminate and guard the place
where an object is depends upon whether such object is an unlawful
obstruction. Under §§ 222 and 233, Rev.Stat., District of
Columbia, the District is not prohibited from permitting a
stepping-stone on any part of the street because it is an
obstruction
per se, nor is the District required to
specially illuminate and guard the place where such stepping-stone
is located.
Page 196 U. S. 153
This is an action for damages for injury caused to plaintiff in
error (who was also plaintiff below) by an alleged negligent
omission of duty by the District of Columbia.
On the twenty-seventh of October, 1895, about nine o'clock in
the evening, plaintiff had occasion to visit Sangerbun Hall, a
house on C Street in the City of Washington. On coming out, and for
the purpose of approaching a wagon which was standing in the
street, he walked rapidly across the sidewalk and, by falling over
a block of stone called a stepping stone or carriage step, which
was on the sidewalk near the curb, broke his leg. Sometime
subsequently he was compelled to submit to its amputation.
The charge against the city was that it was a body corporate and
municipal, and had the power, and it was its duty, to keep the
sidewalks free of obstructions and nuisances, one of which, it was
alleged, said stone was. And further, that it was the duty of the
District of Columbia to keep the streets properly lighted. In
neglect of both, it was alleged, it did "allow and suffer" the
stone to be securely fastened into and remain upon the sidewalk,
and did "keep and continue" it there during the nighttime of the
twenty-seventh of October, without a light to show its presence or
a watchman to notify wayfarers of its existence. Damages were laid
at $25,000. The District of Columbia pleaded not guilty. A jury was
impaneled. At the conclusion of the testimony, the District moved
the court to instruct a verdict for it on the ground that the
plaintiff had not made out a case. The motion was granted, and a
verdict in accordance with the instructions. A motion for a new
trial was made and denied, and the case was then taken to the Court
of Appeals, which affirmed the judgment of the court below. 21
App.D.C. 464.
Page 196 U. S. 155
MR. JUSTICE McKENNA delivered the opinion of the Court.
The first contention of plaintiff in error is that the stone was
an unlawful obstruction
per se. This is deduced as a
consequence from section 222 of the Revised Statutes of the
District of Columbia, which reads as follows:
"No open space, public reservation, or other public ground in
the City of Washington, nor any portion of the public streets or
avenues in said city, shall be occupied by any private person or
for any private purpose whatever."
This section cannot be construed to prohibit putting upon a
street any object without regard to its effect on the use of the
street. The sweeping character of such a construction need not be
pointed out. There are objects which subserve the use of streets,
and cannot be considered obstructions to them, although some
portion of their apace may be occupied. This is illustrated by a
number of cases.
In
Dubois v. Kingston, 102 N.Y. 219, a stepping stone
three feet four inches in length and twenty inches wide was placed
on the edge of the sidewalk. The court observed that the stone was
not of unusual size or located in an improper place, and that it
would be extending the liability of cities too far to hold them
liable for permitting stepping stones on the edge of sidewalks.
Page 196 U. S. 156
Robert v. Powell, 168 N.Y. 411, was also an action for
injuries caused by a stepping stone. The court said:
"There are some objects which may be placed in, or exist in, a
public street, such as water hydrants, hitching posts, telegraph
poles, awning posts, or stepping stones such as the one described
in this case, which cannot be held to constitute a nuisance. They
are in some respects incidental to the proper use of the street as
a public highway. . . . The stepping stone in this case, located
upon the sidestone walk in front of a private house, was a
reasonable and necessary use of the street not only for the
convenience of the owner of the house, but for other persons who
desired to visit or enter the house for business or other lawful
purposes."
It was further remarked:
"The question involved in this class of cases is whether an
object complained of is usual, reasonable, or necessary in the use
of the street by the owner of the premises, or anyone else."
Cincinnati v. Fleischer, 63 Ohio St. 229, 234, also
passed upon a city's liability for the existence of a stepping
stone upon a sidewalk. The court said:
"It [the stone] was within that portion of the street by the
curb, which, according to common knowledge, is devoted to carriage
blocks, lamps, hitching posts, and shade trees, which pedestrians
of ordinary care observe and avoid."
And
Elster v. Springfield, 49 Ohio St. 82, 96, was
quoted to the effect that
"the laying of sewers, like that of gas and water pipes, beneath
the soil, and the erection of lamps and hitching posts, etc., upon
the surface, is a street use, sanctioned as such by their obvious
purpose and long continued usage."
It was held in
Macomber v. Taunton, 100 Mass. 255, that
a hitching post was not a defect in the highway for which the city
was liable for permitting it to remain.
Plaintiff in error cites
Scranton v. Catterson, 94 Pa.
203, and
Davis v. Austin, 22 Tex.Civ.App. 460.
In the first case, an iron water plug in the middle of a street,
and projecting above its surface, was held to be a nuisance.
Obviously, the case is not in point. The second case sustains
Page 196 U. S. 157
the contention of plaintiff in error, but cannot be followed
against the authority and reasoning of the other cases.
2. The second contention of plaintiff in error is that it was
the duty of the District of Columbia to so light the street as to
show the presence of the stone thereon, the District having full
knowledge thereof. This duty is made to rest mainly upon section
233 of the Revised Statutes of the District of Columbia, which is
as follows:
"The proper authorities are directed to increase, from time to
time, as the public good may require, the number of street lamps on
any of the streets, lanes, alleys, public ways, and grounds in the
City of Washington, and to do any and all things pertaining to the
well lighting of the city."
This, in one sense, is but another form of the first contention.
The duty of a city to especially illuminate a place where an object
is, or to put a policeman on guard by it to warn pedestrians,
depends upon the object being an unlawful obstruction.
The plaintiff in error can claim nothing from the general duty
of the city under the statute to light the streets. The exercise of
such duty was necessarily a matter of judgment and discretion,
depending upon considerations which this record does not
exhibit.
Judgment affirmed.
