Philadelphia & Reading Railroad v. Ervin , 89 Pa. 71 ( 1879 )

Mr. Justice Gordon

delivered the opinion of the court, March 10th 1879.

In the determination of this case it is of no kind of consequence whether the wharf of the defendant below was a public or private one, since the plaintiff was there not as a trespasser nor by mere license, but upon not only his own business but also that of the company. It was engaged in the transportation and sale of coal, and he .was engaged in delivering it to the company’s customers, so that whilst he was not employed directly by the defendant, yet, it profited by his employment. The company then in this manner inviting and making it necessary for carters to come upon its premises, was bound to provide ways for horses and vehicles which were' reasonably safe. It was, however, not bound to do more than this: if such ways were reasonably safe; if an ordinarily prudent man could drive along them without danger, the obligation of the defendant was fully discharged; it was not liable for extraordinary accidents, neither was it liable for results arising frcha a want of judgment or prudence on part of the plaintiff. Was the place where the plaintiff’s carts stood unsafe? Then the question at once arises, why did he stand them there? . He, himself, says he stopped where he did, in order to ascertain whether the coal he wanted was or was not on pier No. 11. For a purpose of this kind, it is clear if there was a safer place in the yard he might have taken it; nay, for that matter, he need not have entered the yard at all until he had discovered just where his coal was. If there was a safer place, which was reasonably convenient where he might have stationed his horses and carts, he ought to have selected such place; for he cannot call upon the company to protect him from accidents, from which he might have protected himself by a proper exercise of his own judgment. He knew the ■wharves were unprotected by cap-logs; he knew the nature of horses, certainly the nature of his own horses, quite as well or better than the company, and if, under such circumstances, he w?s not bound to select a place safe beyond peradventure for his own property neither was the company bound to cap their wharves in anticipation of the mulishness of his horses or of his own .want of judgment.

Substantially, the charge of the learned judge of the Common Pleas, on this part of the case, was correct. But as the determination of this question of negligence must depend largely upon circumstances, we think the evidence, offered to prove the nature and character of the company’s business, ought to have been received. If cap-logs would have been an obstruction to that business, it would show, at least, that they had not been omitted from mere carelessness or from a niggardly spirit of economy, and so the defendant would have a better standing with the jury on the question of damages. On the other hand, it was proper to prove, by persons acquainted with the place, that it was dangerous; for if it was obviously dangerous, an inference of the company’s knowledge, of that fact must be presumed.

We turn now to the second specification of error, and we are induced to consider it more because of our desire to relieve the case from doubt upon the re-trial than because of any error in the ruling. That assignment embraces the defendant’s objection to the introduction in evidence of the city ordinance requiring the owners of wharves, on the Schuylkill and Delaware rivers, to put and maintain cap-logs upon them of a height not less than eight inches. The plaintiff, in one of the counts of his narr., declared upon the ordinance as raising a duty which the defendant was bound to observe, and laid the damages, resulting from the loss of his horse and cart, as a consequence of the neglect of such duty. This count could not have stood the test of a demurrer; or had the court been asked to charge that upon this count the plaintiff could not recover, and also that upon the remaining counts the ordinance could not be regarded as evidence, it would have been bound so to charge.

For, let us suppose that these wharves were so constructed that, extra the ordinance, no charge of negligence could arise, and hence no common-law action would lie; would disobedience to this regulation, of itself, subject the company to such charge and action ? This question would seem almost to answer itself; for if it be affirmed, then may civil duties and civil remedies be given or taken away by ordinances; a power as yet quite beyond the .reach of municipal legislation.

The national or state legislature may do this, for it is the supreme power, and as such can make that immoral which was before indifferent, and that neglect which was before prudence, but the city of Philadelphia has no such power. Its ordinances are but police regulations enforceable by penalties, recoverable by actions of debt or otherwise as may be prescribed, but if not so enforced they come to nothing. An ordinance may forbid the maintenance, by my neighbor, of a cesspool upon his premises, and it may, by penalty, compel him to abate it, but whether it does so or not, I may, if I am damaged thereby, have my common-law action against him, but if 1 am not damaged I am without remedy; in this the ordinance neither helps nor hinders. This matter is well stated by Spencer, J., in the case of Vandyke v. The City of Cincinnati, Disney’s Rep. 532, thus: “I conclude, then, that the ordinance imposed upon Harrison a public duty alone, which can only be enforced by the penalty prescribed, and non-performance of which does not subject him to a civil action at the suit of a person injured.” In arriving at this conclusion the learned justice uses the argument I have thought proper to adopt; that is, an ordinance cannot create a civil duty enforceable at common law. For if a city council has power so to do — if it has the power to create such obligation, it must also have the power to restrict it, in other words to prescribe the sole consequences arising therefrom, but it will, we apprehend, be conceded that a power, like the one here indicated, is wholly beyond the province of such a body.

There are indeed cases where such ordinances have been received in evidence in common-law actions for negligence, but they are generally such as enter into the case itself or enforce a common-law duty. Such are ordinances regulating the speed of railroad trains when passing through towns or cities. Here the ordinance may, and usually does, enter into the question of negligence, for the rate of speed to be anticipated has much to do with the care to be exercised by those crossing the tracks. So, on the other hand, those in charge of trains are not only subject to the common-law duty of passing through towns slowly and cautiously, but they mustknow that persons depending upon the observance of the municipal regulations will not take all that care which would be required in the open country. The case in hand, however, involved no such duties. Whether the defendant should or should not have had cap-logs upon its wharves was a matter which addressed itself to the judgment of those having its affairs in hand. The omission of these caps did not, per se, involve the company in any responsibility beyond the penalty of the ordinance. Neither could the plaintiff have placed any dependence upon the observance of such ordinance, for he knew that if it applied at all to the defendant’s wharves it had not been observed; he knew that he must depend for the preservation of his property upon his own care and skill, and, these failing, he then had his common-law remedy for compensation.

Under the pleadings, however, the ordinance was properly admitted, for the plaintiff having declared upon it, and the defendant having permitted the case to go to trial without demurrer or any other traverse than that involved in the plea of not guilty, he, the plaintiff, had a right to introduce this evidence in order to have the judgment of the court thereon. It follows that this case can be reversed onlv for the error, already adverted to, which was committed in overruling the defendant’s offer of evidence as embraced in the third specification.

Judgment reversed^ and a new venire ordered.