Eisenbrey v. Penna. Co. , 141 Pa. 566 ( 1891 )

Opinion,

Me. Chief Justice Paxson :

This was an action of trespass in the court below, brought by the plaintiff against the Pennsylvania Company for Insurance on Lives and Granting Annuities, trustee under the will of Jane Thomas. The plaintiff’s cause of action was set forth in his statement substantially as follows :

On the night of November 7, 1888, the plaintiff was walking on the west side of Filbert street, towards Sixteenth street; that, when opposite the premises No. 1421 Filbert street, a door in a fence, which enclosed the steps in front of that dwelling, was suddenly thrown open outward by a lady; that he was struck violently in the breast by said door, and knocked down and seriously injured; that these premises had been the property of Jane Thomas in her lifetime; that said fence or wooden erection was a nuisance, because it extended outward seven feet from the building line, and because the door, when opened, extended into the sidewalk two feet four and a half inches, leaving only ten feet nine inches to the curb line; and that the defendants were liable by reason of the “negligence of the owners, trustees, employees, or agents, the defendants herein, in permitting the erection to be placed there.”

It was among the undisputed facts of the case that the fence was within the legal line of obstructions, viz., four feet six inches, but that when the door was opened to its full swing it extended about ten inches beyond that limit; that the injury to the plaintiff was caused by the said door being suddenly thrown open ; that the defendant company had nothing to do with putting up the fence; that its trust officer had noticed it in passing, but did not know when it was erected; that it had no right to interfere, and never had interfered in any manner with the said property; that the same was in the possession of Sarah R. Bull, who held under the following clause in the will of her sister, Jane Thomas: “ It is my will and direction that my house and lot, now No. 1421 Filbert street, in the city of Philadelphia, shall, at the value of $20,000, be deemed and taken as part of the one third of my residuary trust-estate, •whereof my sister Sarah R. Bull has the income for life; and 1 authorize and empower my executors, until they shall decide it to be expedient to sell the said house and lot, to permit and suffer her, the said Sarah R. Bull, to occupy and use the same as a home for her, she paying the taxes thereon and keeping the same in repair at her own expense while she shall so occupy the same.” It further appeared that the defendant company never interfered with the possession and enjoyment of the property by Mrs. Bull, but up to this time has allowed her to occupy it as a home.

Under this state of facts, the court below permitted a recovery of five thousand dollars against the company. Upon the trial, the learned judge negatived the defendant’s point which prayed for a binding instruction in his favor, and charged the jury as follows: “ I have decided that, as a matter of law, the defendant in this action is responsible for the injuries which the plaintiff suffered on that occasion.”

I feel embarrassed in discussing this ruling. There are some propositions so self-evident that no strength can be added by elaboration or illustration. That the company, being a mere trustee, not in the occupancy of the property even by a tenant, and exercising no control whatever over it, can be held responsible in damages for this injury, is a proposition the mere statement of which carries with it its own convincing refutation. Aside from this, the accident did not result from the erection of the fence. That was harmless enough, and if in violation of the city ordinance, which does not clearly appear, was not necessarily dangerous or likely to injure any one. The proximate cause of the injury to the plaintiff was the throwing open of the door suddenly. It was not contended that this was done by the company, or by any agent, employee, or servant thereof. There is no room, therefore, to apply the doctrine of respondeat superior. The case bears a striking analogy to Kies v. Erie City, 135 Pa. 144, in which the plaintiff was injured by the sudden swinging open of the doors of the engine-house, across the footwalk. We held that there was no evidence of a defective construction of the building, and that the sudden opening of the doors was the act of the city’s employees, for which it was not liable. That the learned counsel for the plaintiff regards that case as a departure, I infer from the following language in his printed argument:

“ If the opinion of the learned chief justice, as stated, be the law, then all the ordinances are a ‘ Babel of tongues,’ and all the law as laid down a ‘ vain show of platitudes; ’ and along every highway and by-way not only may be constructed engine-houses, but stores and warehouses, and operate their doors by means of springs and bolts which open outward across every sidewalk in this city entirely across the street, so that the doors operated in this way shall stand as armed men on every highway where it suits private whims and caprices to have them; and, if such nuisances are to have the solemn sanction of the highest tribunal in Pennsylvania, then I submit that all the rights guaranteed to the citizen are at an end, and awnings, signs, door-steps, erections, frames, posts, poles, porches, porticos, benches, are to hold high carnival, without limit, upon the public highways in Pennsylvania.”

Notwithstanding this prediction of the dire evils to be apprehended from the ruling in Kies v. Erie City, we adhere to the law of that case, and have no hesitation in applying its principle to the case in hand. Were we to sustain the doctrine now contended for by the appellee, it is within the bounds of reason to say that no one could safely act as a trustee in Pennsylvania.

Judgment reversed.