Kies v. City of Erie

169 Pa. 598

• Court: Supreme Court of Pennsylvania
• Decided: July 18, 1865
• Docket: Appeal, No. 431
• Status: Published

Opinion

Opinion by

Mr. Justice Fell,

The specifications of error raise the single question whether the testimony justified the submission of the case to the jury. The same parties were before the court in 1890 in an action to recover for the same injury, that action being based upon the alleged negligence of a fireman in the employ of the city of Erie in suddenly and violently opening outward over the pavement the doors of a building used by the fire department. The judgment of nonsuit entered in the common pleas was affirmed by this court for the reason that the municipality was not responsible for the negligent act of a fireman and that there was no evidence that the accident was the result of the defective construction of the building: Kies v. City of Erie, 135 Pa. 144. This action rests upon the allegation that the building was so constructed that its doors were opened outward bj1means of springs, and that such a construction was dangerous and negligent.

The building in question was on the house line of the street, and was provided with heavy wooden doors, ten or twelve feet high and six feet wide, which swung outward and when open extended half way over the pavement. Large steel springs were attached to the outside of the doors and so arranged as to open them rapidly when the bolts were drawn. The pulling of a rope unfastened the doors, and the powerful springs caused them to swing with rapidity and force across the pavement. That this was a constant menace to passers-by seems to be too clear for discussion. It was claimed however by tbe defendant that the springs were only intended to aid the fireman in opening the doors, and that after they started to move it was the duty of the fireman to hold them and prevent a too rapid and violent motion. This claim gave rise to the question whether the injury to the plaintiff was caused by the negligence of the fireman, and the question was fully and fairly submitted to the jury. As the defendant is not answerable for the neglect of an employee in its fire department, the issue was narrowed to the inquiry whether the usual and necessary use of the doors without negligence was dangerous to persons passing on the pavement. This question was submitted to the jury. The learned judge in his charge said: “If the operation of these doors with reasonable care would have provided against danger and accident to the passers-by the city is not liable. If the necessary and natural and probable operation of these doors was dangerous even though accompanied by the use of ordinary care on the part of the employees the city is liable for the result.” This was the real test of liability, and the testimony fully justified the submission.

The judgment is affirmed.