City of Allegheny v. Zimmerman , 95 Pa. 287 ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court,

This was an action in case to recover damages for the injury which the defendant in error sustained in one of the streets of the city of Allegheny.

In September, prior to the election of 1876, a “Liberty Pole” was erected in the street by a large number of citizens, as expressive of their political convictions. The street was sixty feet wide, and and the pole stood about eight feet from the curbstone and four feet from the gutter, in front of the house of one Myers, who participated in its erection. It consisted of three pieces firmly spliced together and securely held by bands and bolts. It was otherwise secured in place by ropes tied to the chimneys of neighboring houses. It stood for some three or four weeks, when in a severe storm and gale the ropes appear to have broken, and the pole broke off some forty feet above the ground. The upper part fell, breaking into several pieces, one of which struck the defendant in error, a boy about eight years old, who was standing on the sidewalk on the opposite side of the street.

The court below held the erection of this pole on the street a nuisance per se, and if the city authorities, whose duty it was to remove it, had knowledge of its being there and allowed it to remain, and the defendant in error, without negligence on his part, was injured by its falling, the city was liable. The correctness of this view presents the main question in- the case.

Any unreasonable obstruction of a highway is a public nuisance, for which an indictment will lie. It is not, however, every obstruction in a highway that constitutes a nuisance per se. When it is not, and whether a particular use, is an unreasonable use and a nuisance, is a question of fact to be submitted to a jury. Highways are intended for, and devoted to, the purpose of public travel, and every person may exercise that right, but in a reasonable manner. Due regard must be had to other rights. Thus^ stone, brick, sand and other materials necessary to be used in building may lie placed in the street in the most convenient manner and suffered to remain for a reasonable time. This may be said to result from necessity in building. But the. right to partially obstruct a street does not appear to be limited to a case of strict necessity, it may extend to purposes of convenience or ornament, provided it does not unreasonably interfere with public travel. Thus public hacks, by authority of the municipality, may stand in particular parts of the streets awaiting passengers, although the public are thereby excluded from using that part of the street most of the time. So shade trees may stand between the sidewalk and the central part of the street without constituting a nuisance per se. They may become a nuisance by disease or decay, yet the mere partial obstruction of a part of the street, when in fact such obstruction does not interfere with the public use, does not create a nuisance. It does not work that hurt, inconvenience or damage to the public necessary to constitute the offence.

The erection of liberty poles appears to have been almost coeval with the birth of our nation. As the name imports, they were erected to symbolize our liberties and as a mode of proclaiming that we had thrown off all allegiance to the government of Great Britain. At first they appear to have been used as expressive of concurrence in the principles embodied in the Declaration of Independence. As time passed on, they began to be erected by each political party of the country to express its greater devotion to the rights of the people. As the object of their erection was patriotic and with a view of inciting a spirit calculated to advance the public welfare, they were placed on highways and public squares. The people so desired it. The municipal authorities assented to it. It is a custom sanctioned by a hundred years and interwoven with the traditions, memories and conceded rights of a free people. Unless forbidden by the authorities, it has been considered the exercise of a lawful license incident to citizenship. Hence, in this case, no permission was asked of the authorities for leave to erect the pole, and no objection was made by them. The travel on the street where it stood was merely local. It did not occupy the street to.such an extent or in such a manner that any person complained of its interfering with the public travel. To all appearance the pole was strong and sound. No doubt existed as to its strength. In the view taken by the court below, it mattered not if all these facts were proved; and further, that it was well secured : that no person had reason to apprehend any danger in its remaining therb, and that it yielded only to the severe gale, yet, having broken, the city was liable for the injury sustained by the defendant in error. If it has been a uniform custom for the people to erect such poles in the streets of the city from its earliest history under the implied assent of the municipal authorities, and if this one was carefully erected, having due regard to the material of which it was formed and the manner in which it was secured, so that a careful and prudent person would have apprehended no danger therefrom, we think it was not a nuisance per se. It is, therefore, a question for the jury whether it was erected in such a place and manner and maintained for so long a time, under all the circumstances, as to have created reason able apprehension of danger. It did not become a nuisance by reason of the brief time only that it remained, unless there was a change in its safe condition or some complaint made to, or action taken by, the city authorities in regard to it. But conceding that the city, at a moment before the injury, might have been indicted for suffering the pole to remain, which we do not admit, it does not necessarily follow that this action for damages can be sustained: Wood on Nuisances, sect. 324; Fairbanks v. Kerr, 20 P. F. Smith 86. The question still remains whether suffering the pole to remain in the street was such a probable and proximate cause of the injury as to make the municipality liable in damages. The defendant in error sustained no injury while the pole was standing there. He does not.complain that it interfered with his free use of the street for all purposes of a highway. He came in no collision with it. He complains of no injury special to himself until after it broke and fell. Even if it was a public nuisance, he could not maintain an action for damages without proving some special damage to himself: Wood on Nuisances, sect. 829; Mechling et al. v. Kittanning Bridge Co., 1 Grant 416.

As a general rule, one is answerable in damages for the consequences of his faults only so far as they are natural and proximate, and may therefore have been foreseen by ordinary forecast, and not for those arising from a conjunction of his own faults with circumstances of an extraordinary nature: Morrison v. Davis, 8 Harris 171; McGovern v. Lewis, 6 P. F. Smith 231; Pennsylvania Railroad Co. v. Kerr, 12 Id. 353; Fairbanks v. Kerr, supra ; Scott v. Hunter, 10 Wright 192. In the present ease, the breaking of the pole was the proximate cause of the injury.

If then, the jury should find from the evidence that the pole was sound and so secured and protected that careful, prudent and sagacious persons considered it safe, and it was broken by a wind of unusual violence, the injury of the boy was a result too remote from the erection of the pole to make the city liable in damages therefor. Nor did the city become liable if the breaking occurred by reason of a defect in the pole unknown to the city authorities, and which could not be discovered by a careful examination of the pole as it stood.

In so far as the first, second, third and fourth assignments are in conflict with this opinion they are sustained. There is no error in the fifth, nor, as a whole, in the sixth, although some parts of the offer, if presented separately, might be admissible.

Judgment reversed, and a venire facias de novo awarded.

Justices Gordon and Trunkey dissented from so much of this opinion as overrules the decision of the court below that the erection and continuance of the pole on the street was a nuisance per se.