Wolf v. District of Columbia

21 App. D.C. 464, 1903 U.S. App. LEXIS 5498

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 7, 1903
• Docket: No. 1238
• Status: Published

Opinion

Mr. Chief Justice Alvey

delivered the opinion of the court:

It is contended by the plaintiff that the carriage block in question was an unlawful obstruction of the sidewalk, and consequently a public nuisance, and that being so, it was the plain duty of the municipal authorities of the District to see that all sidewalks were kept free from obstruction of every kind and description; and sections 222, 225, 226, 227, and 229 of the Revised Statutes relating to the District of Columbia are cited and relied on in support of the proposition.

By section 226, Rev. Stat. D. C., it is provided that “ It shall be the duty of the chief of engineers, in charge of the public buildings and grounds, to cause obstructions of every kind to be removed from streets, avenues, and sidewalks in the city of Washington, as have been or may be improved in whole or in part by the United States, and keep the same, at all times, free from obstruction.” And by section 229 it is provided that “ If any person shall place any obstruction on the streets, avenues, or sidewalks so improved by the United States, such person shall pay the cost of removing the same, and shall be subject to a penalty of ten dollars, to be recovered as other debts are recovered in said District, for each and every day the obstruction may remain after the chief of engineers shall have given notice for its removal.”

Without stopping to inquire what duty these sections of the Revised Statutes imposed, if any, upon the Commissioners of the District, the question here presented is, whether an ordinary carriage block or step, such as we have in this case, and such as has been in use from time immemorial, as an incident or appurtenant of convenience, if not of necessity, to places of business and residences in cities, constitutes an obstruction within the meaning of the sections of the statute quoted. It is clear, the provisions of the statute do not apply to many things, that may, in a sense, be regarded as obstructions to the sidewalks of a city. They certainly do not apply to the shade trees growing along the sidewalks, nor to lamp posts, water hydrants, awning posts, telegraph or telephone poles, that we find everywhere in the city, along the sidewalks. All these things may be regarded, in a particular ■sense, as obstructions, but they are not such within the meaning of the statute. They are objects allowed and authorized, by immemorial custom and usage, as being necessary to the health, convenience, protection, and enjoyment of the homes and lives of the inhabitants of the city. Where these objects of convenience and comfort have been subject to proper regulation, as they always are and should be, they have never been regarded as nuisances, either public or private. And in the'case of a carriage step or block, it is of such reasonable convenience and such a necessary appurtenant to dwellings and places of business on the streets of a city that the right to maintain it, of a proper size and in a proper position, has seldom been attempted to be questioned. The legal existence of carriage steps or blocks was fully recognized in this city long before the occurrence of the accident, the subject of the present action, and they have been regulated by both the building and police regulations prescribed by municipal authority. Their legal existence has been explicitly recognized by this court in the case of Howes v. District of Columbia, 2 App. D. C. 188, and that case is in accordance with decisions of the highest authority elsewhere.

In the case of Dubois v. City of Kingston, 102 N. Y. 219, it was the unanimous opinion of the 'Court of Appeals of New York, that a stepping-stone in the front of a public building, just inside the curb of the sidewalk, was not such an ■obstruction as would render a city liable for an injury sustained by a person falling over it, even though others had been previously injured by falling over the step. It appeared that the plaintiff was injured while running to a fire, •which appeared to be in the direction of his own house, in the city of Kingston, by falling over a stepping-stone, lying in the sidewalk in one of the streets of the city. The stone was 3 feet 4 inches in length, 20 inches wide, and 14 inches high. It lay lengthwise with the curb and on the side thereof, in front of the building containing the post-office, a music hall, and several stores. In the opinion, the court said: “Actions against municipal corporations for injuries-sustained by individuals while using or passing along its-streets are founded upon the ground of negligence of its-officers in performance of their official duties, and cannot be maintained without evidence showing that they have been derelict in this respect, by means of which the injury has-been sustained. We think there was no such proof upon the trial of this action. The stepping-stone over which the plaintiff fell and was injured was not of unusual size or of an improper construction, nor was it located at an improper-place. It was placed in a position on the sidewalk most convenient for persons who should alight from a wagon or carriage or get into the same from the sidewalk, and thus it was a means of accommodation to those who had business at the post-office, or in the building in front of which it was located. It was not any more exposed than was essential for its proper and useful loeation.” And in the conclusion of the opinion it was said: “ It would be extending the rule of the liability of municipal corporations far greater than has yet been done in any decided case, to hold that they are liable for assenting to the placing of stepping-stones on the edge of sidewalks in front of hotels, stores, public buildings, and private residences. The courts have gone quite far in holding such corporations to a very strict responsibility in reference to accidents caused by a failure of their officers to keep the streets and sidewalks in a proper and safe condition, but it would be adding to the corporate liability beyond reasonable limits to hold that stepping-stones, which are almost a necessity in providing for the interest, comfort,, and convenience of the public in the maintenance of walks, avenues, and streets, constitute a nuisance or obstruction, and that municipal corporations are liable for damages by reason of accidents caused thereby.”

In the more recent case of Robert v. Powell, 168 N. Y. 411, the same principle is very fully laid down. In this-latter case the action was brought against the owner of the dwelling in front of which the carriage block was placed. It was held by the unanimous opinion of the court, that the block being of an ordinary size, and placed in the usual position at the curb, was not an unlawful obstruction of the sidewalk, and the plaintiff could not recover for injuries received by stumbling over the step. In that case, on the night of the accident, the plaintiff, while walking rapidly on Nifty-eighth street, crossed the street diagonally from the defendant’s house, in order to take a cab, and stumbled over a stepping-stone or carriage block maintained by the defendant in front of her residence. The stone over which the plaintiff fell was 18 inches high, 13 inches long, and 16 inches wide. In the opinion the court said:

“ The stepping-stone in this case, located upon the sidewalk in front of a private house, was a reasonable and necessary use of the street, not only for the convenience of the owner of the house, but for other persons who desired to visit or enter the house for business or other lawful purpose. It did not interfere in the least with the use of the road-way or bed of the street; nor did it interfere to any appreciable or unreasonable extent with the use of the sidewalk. There were eight feet of a clear, open space upon the side-walk for the use of travelers, and the fact that the plaintiff, while hurrying in the night time to take a cab, stumbled over the stone, when the place was well lighted and the object plainly visible, does not prove, or tend to prove, that the defendant was guilty of any wrong or breach of duty in maintaining the stepping-stone in front of her house. It is true that the plaintiff was injured, but that was the result of an accident, due possibly to his own fault, but at all events not to any fault on the part of the defendant, or to any unlawful obstruction by the defendant of the street. The question involved in the case is, we think, well settled by authority. Dubois v. Kingston, 102 N. Y. 219; Dougherty v. Trustees, etc., 159 N. Y. 154. While it is said that these cases involved only the question of liability on the nart of the municipality for negligence, they also decided that the existence of objects of this character in the streets is lawful. If the city could not be held liable for permitting them to be there after notice, neither can the defendant be held liable for placing them there. The question involved in this class of cases is whether the object complained of is usual, reasonable, or necessary in the use of the street by the owner of the premises, or any one else.”

There are other courts than those of New York that have maintained the same principle. City of Cincinnati v. Fleischer, 63 Ohio St. 229; Macomber v. City of Taunton, 100 Mass. 255; Cushing v. Boston, 124 Mass. 434; Horner v. City of Philadelphia, 194 Pa. St. 542.

Upon general principle as well as upon authority we are clearly of opinion the carriage block or stepping-stone in question was not an unlawful obstruction of the street or sidewalk, and that the defendant is not liable for the injury received by the plaintiff in stumbling and falling over the stone.

But the plaintiff contends that even conceding that the carriage block in question was not an unlawful obstruction, and did not constitute a public nuisance, yet the street in that particular section was defectively and insufficiently lighted, and because of such defective and insufficient lighting of the street and sidewalk, the plaintiff ran against and stumbled over the block or stepping-stone and was injured, and that the defendant corporation is liable for such injury, because of the neglect to properly light and keep lighted the street and sidewalk where the accident occurred. But whatever insufficiency may have existed in the light upon the occasion of the accident, (if any insufficiency did in fact exist,) such an action as the present is not the remedy for the consequences of such defect. Money is annually appropriated by Congress for lighting the streets of the city; but whether such appropriation be sufficient or insufficient, the courts cannot determine; nor can they determine how the lights shall be distributed through the city; or how any particular street or section of a street shall be lighted, whether by few or many lights, or whether by gas or electricity. These are matters that are confided exclusively to the judgment and discretion of the municipal authorities.

Finding no error in tbe ruling of tbe court below directing tbe verdict for tbe defendant, we must affirm tbe judgment, and it is so ordered. Judgment affirmed.

Upon motion on bebalf of tbe appellant, a writ of error to tbe Supreme Court of tbe United States, was allowed June 2, 1903.