District of Columbia v. Moulton

15 App. D.C. 363, 1899 U.S. App. LEXIS 3521

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 8, 1899
• Docket: No. 909
• Status: Published

Opinion

Mr. Chief Justice Alvey

delivered the opinion of the Court:

By the Act of Congress of February 21, 1871, (the portion whereof that constitutes Sec. 77, B. S. D. C.), it is provided that the Board of Public Works, now the Commissioners of the District, “shall have entire control of and make all regulations which they shall deem necessary for keeping in repair the streets, avenues, lalleys,” etc. And with respect to the Commissioners of the District, having such full and complete control of the streets, it has been held, and it is now settled, that they are under a duty to keep the public ways of the city in such condition that they can be used with reasonable safety. “ Their neglect in that matter is the neglect of the municipal corporation of which they are the responsible representatives, although subject to the paramount authority of Congress.” District of Columbia v. Woodbury, 136 U. S. 450, 455, 456.

In defining the special circumstances under which a municipality like the District of Columbia may be held liable for personal injuries received by a passenger or traveler, or injury to personal property, as the consequence of a horse taking fright from an object allowed to remain within the limits of a street of a city, calculated to produce fright of a horse of ordinary gentleness and tractability, has been the subject of difficulty with the courts, and in regard to which the courts of the country are far from being in entire accord. Indeed, by some of the State courts of high authority, the principle of liability of the municipality for the consequences of fright to horses in the streets of the city has been denied. This would seem to be the case in the Supreme Judicial Court of Massachusetts, and in some other of the State courts following the decisions of the Supreme Court of Massachusetts. But the great weight of authority is the other way, and in support of the principle of liability of the municipality. According to the principle of the great majority of cases, if an object calculated to produce fright of a horse of an ordinary gentle character be allowed to remain in a street an unreasonable length of time, such object will be regarded as a nuisance and an undue obstruction of the travel of the street.

But where injury occurs from such cause, in order that liability attach thereupon, it must clearly appear that there is a concurrence of both injury and wrong, the latter being the cause of the former. If a party does an act that is not unlawful in itself he can not be held responsible for any resulting injury, unless the act be done at a time or in a manner or under circumstances which render the party chargeable with a want of proper regard for the rights and safety of others. In such case the negligence imputable to the party doing the act constitutes the wrong, and such party is accountable to persons injured, not because damage has resulted from the doing of the act, but because, the act having been done negligently or without due care, it has resulted in injury. If the act was not wrongful in itself, the wrong must necessarily be sought for in the time or manner or circumstance under which it was done, and injury does not prove the wrong, but only makes out the case for redress after the wrong is established. Macomber v. Nichols, 34 Mich. 212. In this case there can be no question of the lawfulness of the use of the roller in the repair of the street, and of its being allowed to remain on the street such reasonable time after it became disabled, as would be required to enable the defendant or its agents, by the exercise of reasonable diligence, to remove the machine out of the way. The alleged non-exercise of such reasonable diligence is the gravamen of this case.

Now, supposing the roller to have been an object naturally calculated to produce fright in a horse of an ordinary gentle character, and that it was allowed to remain in the street for an unreasonable time after it became disabled and before the accident, and that it did produce fright of the horse and caused the accident without contributory negligence on the part of the plaintiff, it would seem to be clear the defendant became liable for the resulting injury to the plaintiff. For it is now settled, by a great preponderance of authority that where a horse of ordinary gentleness and tractability becomes frightened at an object naturally calculated to frighten horses, which the municipal agent or superintendent has negligently placed, or permitted to be placed and allowed to remain in a street or highway of the city, and injury results, without contributory negligence, the municipality will, as a general rule, be liable for such injury. And this liability extends, according to the great weight of authority, to objects on the margin of the street or highway and within its limits, although such object may not be within the traveled way of such street, and the horse or vehicle may not come in actual contact with the object of fright. The object, however, must be of such a nature as to be naturally calculated to frighten horses of ordinary• gentleness, and it is incumbent upon the plaintiff to make it clearly appear that the object in the street was calculated to produce fright in a horse of ordinary gentleness, and that the horse frightened was in fact one of ordinary gentleness and easily subject to control; for it is not against capricious and fractious horses that the municipality is required to guard. The onus of these facts is upon the plaintiff, and in a doubtful case a recovery ought not to pass against the municipality. It is only where there is a plain and obvious neglect of duty on the part of the municipal agents that liability can arise in such cases as the present. Ring v. Cohoes, 77 N. Y. 83 ; Hay v. Philadelphia, 81 Penna. St. 44; Young v. City of New Haven, 39 Conn. 425 ; Ward v. North Haven, 43 Conn. 148; City of Chicago v. Hoy, 75 Ill. 530; Morse v. Richmond, 41 Vt. 435 ; Bartlett v. Hooksett, 45 N. H. 18 ; Rushville v. Adams, 107 Ind. 475; Foshay v. Glen Haven, 25 Wis. 288 ; Hughes v. Fond du Lac, 73 Wis. 380; Bennett v. Fifield, 13 R I. 139 ; Ayer v. City of Norwich, 39 Conn. 376 ; Card v. City of Ellsworth, 65 Me. 547. And among the cases that we have just cited, may be found cases where the objects in the streets which produced fright of the horses, were steam rollers, dead horses, boulders, and other objects naturally calculated to startle and produce fright of a horse, and which were found, under the circumstances of those cases, to be an undue obstruction of the street.

The cases upon the subject have been clearly summarized by the text-writers of authority, and by none more clearly than by Judge Dillon in his work on Municipal Corporations. In Vol. 2, Sec. 1011, the author says: “An object in a public street calculated to frighten horses, such as a dead animal, is such an obstruction as may make the corporation liable in case of an accident resulting in injury, happening in consequence thereof, if it is allowed to remain in the street for an unreasonable time. Thus, where a horse died in a public street of a city about 2 o’clock P. M., and the fact that the dead body was left in the street was known to a policeman of the city that night, and on the next day, about 3 o’clock P. M., the plaintiff, while driving along the street, without negligence on his part, was injured in consequence of his horse taking fright at the dead animal, the city, under the circumstances, was held liable to him for the injury. Where there is a defect or object in a street which is calculated to frighten horses and an injury occurs by reason thereof without the fault of the driver, the corporation is liable; but objects outside the traveled way, and not near enough to the line of public travel to interfere with or incommode travelers, are not defects in the highway. It is not requisite, as we have already seen, that a highway, in its whole width as located, should be fitted for travel. It is sufficient if it be of suitable width and in good condition for the needs of the public.” And for this text the author has cited a large number of decisions.

In view of the principles that would seem to be so amply supported by authority, we think the court below committed no error in granting the three special instructions on the request of the plaintiff. The first of these instructions is clearly within the principle of the authorities we have cited; and the second, relating to the principle of contributory negligence applicable in such case, would seem to be. altogether free from objection. It is fully within the principle of the authorities upon the subject, and particularly the cases of Railroad Company v. McDonald, 152 U. S. 262, 281, and Railroad Company v. Hickey, 5 App. D. C. 436, 471. All that could have been required of the plaintiff in the sudden emergency that arose and under which he was required to act, was that he should have acted as an ordinarily prudent and careful man would have acted under like circumstances; and this was the standard of care that the jury were required to find that directed the conduct of the plaintiff at the occurrence of the accident.

With respect to the third special instruction given at-the instance of the plaintiff, that relating to the measure of damages, we do not understand that instruction to be the subject of the assignment of any supposed error. It would seem to be free from any substantial ground of objection.

We come now to consider the prayers for instruction offered by the defendant. And with respect to the first, the eleventh, twelfth, thirteenth and fourteenth of those prayers, they were each and all properly refused, as they denied the right of the plaintiff to recover, under the pleadings and evidence. As to the second, third, fourth, fifth and sixth of the defendant’s prayers, they were severally granted by the court, with the consent of the plaintiff. They are therefore only important to be noticed, as showing the grounds, and the extent of the matters of defense, that were submitted to the j ury.

By the second of the defendant’s prayers thus granted, the jury were instructed that if they believed that the plaintiff by his own negligence directly contributed in any degree to the injury complained of, they should find for the defendant. By the third of these prayers, the jury were instructed that the defendant is not an insurer against accidents upon its streets, and it can only be held liable upon proof of negligence as alleged in the declaration. By the fourth of said prayers, the jury were directed that the burden of proof was upon the plaintiff to show by a preponderance of the evidence that the accident whereby he was injured was the result of negligence on the part of the defendant as alleged in the declaration; and if the jury should find that such evidence was consistent equally with the existence or non-existence of such negligence on the part of the defendant, the plaintiff could not recover, and the verdict should be for the defendant. By the fifth prayer, the jury were directed that if they should believe from the evidence that the plaintiff, by the exercise of such care, prudence and caution as a reasonably prudent person would have exercised under similar circumstances, might have avoided the injury suffered by him, then he could not recover, and the verdict should be for the defendant. And lastly, that the jury were not at liberty to presume negligence on the part of the defendant from the mere happening of the accident.

These propositions were all given to the jury as instructions from, the court; and when taken in connection with the instructions given at the instance of the plaintiff, the case would appear to have been very fully placed before the jury in all its aspects; and that too as favorably to the defendant as the facts of the case would warrant.

The seventh, eighth, ninth and tenth prayers of the defendant presented propositions not within the principles hereinbefore stated, and they were therefore properly refused. By the seventh prayer, the court was asked to hold and declare that the time which the roller was allowed to remain on Park street, in its disabled condition (according to the assumption of the prayer), before the happening of the accident, was not an unreasonable time for it to remain there; and the allowing it so to remain did not constitute negligence on the part of the defendant. The time and the circumstances under which the roller was allowed to remain upon Park street after it was broken, were sought by this prayer to be made a question of law, to be decided .by the court; and thus to withdraw the question of negligence from the jury as matter of fact. In rejecting this prayer, we think the court committed no error.

By the eighth prayer, the defendant asked that the jury be instructed that the fact of the plaintiff seeing the roller, and thus becoming informed of its position, before the accident actually occurred, and in time to have avoided the accident, dispensed with the necessity of any other notice of the position of such roller; and by the ninth prayer, the request was that the jury be instructed that if the roller was, at the time of the accident, on Park street for the purpose of being used in the work of repairing that street, then the roller was in no sense a defect or obstruction; and if the plaintiff saw it in time to have avoided it by going down another street, but, instead thereof, attempted to pass the roller, and in so doing his horse became unmanageable and overturned the carriage and threw the plaintiff out, then he was guilty of negligence, and was not entitled to recover, and the verdict should be for the defendant.

These prayers assumed that the plaintiff knew or ought to have known, or had good cause to believe, that his horse would become unmanageable and would refuse to be driven past the roller. This knowledge, however, he could not be charged with in anticipation of the conduct' of the horse and the happening of the accident; and especially not as he had reason to rely upon the gentleness and manageable character of his horse. It was the sudden fright of the horse that produced the accident, and which could not have been anticipated from his previous knowledge of the horse. These prayers were properly refused.

The tenth prayer presents a proposition in regard to which there has been some diversity of opinion, and especially in the later cases in the Massachusetts Supreme Court, and some other courts. By this tenth prayer the court was asked to instruct the .jury, that if the plaintiff’s horse or carriage did not come in contact with the steam roller on Park street, but that the horse was frightened by it, became unmanageable, and overturned the carriage at a point in Park street, some distance from the roller, where the street was safe, then the plaintiff is not entitled to recover, and the verdict must be for the defendant.

The great weight of authority is so decided against this proposition that we can have no hesitation in saying that the court below was right in refusing the prayer as an instruction. We have already referred to many of the cases upon this subject, and which hold that the municipality is liable for an injury occasioned by the fright of a horse at an object within the limits of a street or way, although neither the horse nor the carriage came into contact with the object producing the fright. Bartlett v. Hooksett, 48 N. H. 18; Morse v. Richmond, 41 Vt. 435; Ayer v. Norwich, 39 Conn. 376; Card v. City of Ellsworth, 65 Me. 547; Foshay v. Glen Haven, 25 Wis. 288; Town of Rushville v. Adams, 107 Ind. 475.

This tenth prayer, therefore, was properly rejected.

We have carefull3r examined the general charge to the jury by the court below, and we find nothing therein inconsistent with the principles embodied in the special instructions granted at the instance of the respective parties; and nothing in any part of the charge to which valid exception could be taken.

It follows that the judgment appealed from must be affirmed; and it is so ordered.

Judgment affirmed.