District of Columbia v. Washington

44 App. D.C. 120, 1915 U.S. App. LEXIS 2690

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 1, 1915
• Docket: No. 2818
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court;

The duty of the District to erect and maintain a railing or other guard along the embankment in question is not denied, nor could it well be, since the lack of reasonable protection at such a place renders the traveled way itself unsafe and out of repair. Drew v. Sutton, 55 Vt. 586, 45 Am. Rep. 644; Davis v. Hill, 41 N. H. 329; Roth v. Highway Commission, 115 Md. 469, 476, 80 Atl. 1031. But it is contended, on behalf of the District, that the purpose of such a guard is merely to indicate to a traveler where he may go, and that if he puts the barrier to a use other than that for which it primarily was intended, he assumes responsibility for his act. In Massachusetts and Maine, where liability depends upon statute, it has been ruled that there can be no recovery where a traveler, without necessity, leans against a railing, even though it be defective. Stickney v. Salem, 3 Allen, 374; Stinson v. Gardiner, 42 Me. 248, 66 Am. Dec. 281. In the former case the court said: “The legal obligation of keeping a sufficient railing upon the highway is imposed only when it is necessary to mark the limits of that part of the road within which persons may safely travel, or to furnish a guard against dangerous places so that proper protection may be afforded to those who, in the exercise of due care as travelers while passing or standing on the way, might otherwise be exposed to accident or injury.” The court further said: “If a person, without fault or negligence on his part, is forced against a railing, or takes hold of it to aid his passage, or falls against it by accident, or has occasion to use it in any way in furtherance of a lawful or reasonable exercise of his rights as a traveler, and by reason of any defect or insufficiency it gives way and causes injury, a town or city would be liable to make full compensation for the damages thereby occasioned.” ,

In Langlois v. Cohoes, 58 Hun, 226, 11 N. Y. Supp. 908, the court directed attention to the fact that in New York liability had been held to arise at common law, and that the doctrine of the Massachusetts apd Maine cases upon the subject would not be applied. The court said: “The railing of the bridge should be sufficient to meet all of those incidental uses to which it would reasonably be put by persons crossing. We say nothing about sitting on the rail. We speak merely of that leaning against it which is the common act of a person stopping a moment for any purpose on the sidewalk of a bridge.” To the same effect was the ruling in Jackson v. Boone, 93 Ga. 662, 20 S. E. 46.

The embankment in the present case bordered a much traveled public way in a thickly populated section. We think, therefore, that under the facts it constituted such a dangerous place that something more than a mere muniment was required for the protection of pedestrians. This duty the District authorities evidently understood and appreciated, for the railing at this place was of such a character as to furnish a substantial guard, if in proper repair or condition. We think it clear that such a guard should be reasonably sufficient to protect all travelers who are making a legitimate and proper use of the street. Surely a person is making such use of the street if, without his fault, he falls or is thrown or crowded against the railing as he is attempting to pass along. Such occurrences are reasonably to be expected, and therefore should be provided against. If the railing must be of such a character as to protect a traveler under the conditions just mentioned, surely it ought not to be said, as matter of law, that a mere casual leaning against the railing would be such an unusual or careless act as to preclude recovery where the railing gave way by reason of its defective condition. The traveler has a right to assume, in the absence of any indication to the contrary, that the railing is sufficient for the purpose for which it was designed; and we think it well may be held a question for the jury whether a mere leaning against such a railing, as the traveler pauses in his walk, constitutes such an unreasonable use of the same as to preclude his right to recover. The strain upon the railing under such conditions would not be unusual. If the railing should be sufficiently strong to. protect a traveler who falls or is crowded against it, surely it ought to be sufficiently strong to withstand the same kind of a strain when exerted by a traveler who casually leans against it.

But we do not think that the use of such a railing as a seat is one of the incidental uses to which it reasonably may be put by travelers. Such a use is not to be anticipated, and hence not to be guarded against. In the present case neither the posts to which the rail was nailed, nor the rail itself, gave way. The accident was occasioned by the wrenching of the rail from its support. In what way the force was exerted that caused the rail thus to be wrenched from its support is, of course, a question for the jury; but the District was not required either to construct or to maintain a railing that would resist such an unusual and unnecessary strain as would he likely to come from using the rail as a seat, and particularly is that so in the present case because of the unusual weight of the intestate. It follows that it was error for the court to refuse the instruction requested.

The coroner of fre District was called as a witness in its behalf. He testified that the death certificate issued at the time of the intestate’s demise was in his handwriting, and he then was asked “what reason was assigned by him as the cause of the death.” The court sustained plaintiff’s objection to this question, and the ruling here is assigned as error. The question then at issue was, What occasioned the death ? The death certificate was not evidence, and it could not be made evidence indirectly. The witness properly might have been asked to state his means of knowledge, and then his opinion as to the cause of death. But that was not done.

The judgment must be reversed, and the cause remanded for a new trial. Reversed and remanded.