Pittsburgh City v. Grier

1. A city being in possession of a public wharf, within its limits, exercising exclusive supervision and control over it, and receiving tolls for its use, is bound to keep it in proper condition for use. 2. The corporation is liable for special injury maintained by an individual in consequence of its neglect to keep the wharf in order, and case may be sustained therefor. 3. It was not material whether the city had adopted ordinances for the regulation of the wharf, or having such, neglected to enforce them. The responsibility is the same in either event. 4. When the plaintiff has sustained injury from the neglect of a public, duty which the defendant has impliedly promised to perform, either ease or assumpsit may be maintained. 5. Where the injury was the immediate consequence of a peril to which the suffering party was obliged to expose himself in order to avoid the one arising from the negligence of the city authorities, it was sufficiently proximate to sustain the action. 6. A steamboat was landed,, at a moderate stage of water, at a proper place at the Monongahela wharf at Pittsburgh, on which piles of iron metal had been lying for a longer time and nearer to the water’s edge than was allowed by the ordinances of the city. The river afterwards rose and the boat struck on the iron, and to avoid such danger was backed into the stream, where it was struck by a floating body, and further injured and sunk: Held, that the wharf being under the exclusive control and regulation of the city authorities (whether rightfully or not, held not to be material), who derived a revenue from its use, the wharfage of the boat having been paid, the city authorities having been guilty of negligence in not having the iron removed, the corporation was liable in an action on the case to the owners of the boat for the injury sustained. 7. Though some other place on the wharf might have been more secure, the captain of the boat had a right to select the one in question which was at the time safe, the faith of the city being pledged to render it secure. 8. It was not material that the city authorities did not foresee the danger as likely to occur. 9. The parties in this case were not in the position of persons equally in fault. Though both parties had an equal opportunity of seeing the danger, they were not bound to equal degrees of vigilance. The city was responsible for extreme care of the wharf; the owners of the boat only to that common prudence which would keep it clear of a manifest peril.

Error to the District Court of Allegheny county. This was an action on the case to April Term, 1849, by David A. Grier and Robert Duncan, owners of the Steamboat Mary Ann, against the Mayor, Aldermen, and Citizens of Pittsburgh. It was brought to recover damages for injuries sustained by the sinking of the steamboat Mary Ann, at the wharf in the city of Pittsburgh, in consequence, as was alleged on part of the plaintiffs, of the default of the defendants, in allowing a quantity of pig metal to lie for an unreasonable time upon the landing. The declaration contained two counts. In the first, it was alleged that the wharfage of the boat for that occasion was paid. That the defendants, in their corporate capacity, were proprietors and seised of the wharf adjacent to the city, and exercised the entire control and regulation thereof, and had enacted ordinances for its control and regulation, one of which was, that all blooms and pig metal should be unloaded sixty feet from the water’s edge on the paved part of the wharf, and thirty feet on the unpaved part, and ranked compactly at least three feet high; no boat to occupy for blooms and pig metal more than twenty-five feet fronting on the river; no metal to remain on the wharf more than three days, &c. It was further alleged that a wharf-master was elected; that a duty lay on the defendants in their corporate capacity to keep the wharf clear of obstructions, and to afford to boats a safe and convenient landing and anchorage. It was alleged that in December, 1848, a large amount of blooms and pig metal was unloaded, and allowed to be placed on the paved part of the wharf, within thirty or forty feet of the water’s edge, and ranged in piles occupying forty or more feet on the river, at a point where it was customary for boats to land,—and that through the negligence of the defendants, the metal was suffered to remain for twelve or fifteen days prior to the 9th of January. That the plaintiffs relied on the enactments and regulations, and upon the duty of the defendants, and upon their rights under the same—that their boat was landed on the 9th of January, at the only convenient and proper place open for it, and it being high water, it was brought up to the water’s edge according to the usual custom. And shortly after, the water beginning to fall rapidly, the boat being over the metal piles, was forced in the night time backwards into a dangerous part of the channel, where it was struck by floating boats or lumber, and sunk. In the second count it was alleged that the defendants in their corporate capacity had the control and regulation of the wharf,—also their demanding wharfage—their duty to keep the wharf in proper order, and to afford safe landing—that on or about the 3d of January, 1849, the defendants permitted several piles of blooms and pig metal to be placed on the wharf, in an improper place, and permitted it to remain for an unreasonable time—also, that on the 12th January the boat of the plaintiffs came to the wharf at the only convenient and proper place unoccupied; alleged the payment of wharfage, and that in a few days thereafter a sudden flood and heavy run of ice occurred; that to save the boat it was moved to the water’s edge, and the water afterwards falling, and the boat being likely to founder on the metal on which it struck, was forced back into a dangerous part of the current, where it was struck by floating ice, lumber, or boats, and sunk. The plea was, not guilty. The declaration was afterwards demurred to specially. The case showed that the plaintiffs were the owners of the steamboat Mary Ann, which was insured by themselves at a valuation of $5000; that the said boat came 'into the port of Pittsburgh, and anchored at the Monongahela wharf, on the 9th or 10th day of January, 1849, the water being then at a stage of about four feet; that there were several piles of pig iron then lying on the beach, at a distance of about thirty-five or forty feet above the water’s edge, and above the log which was placed at the low water line, and which was then visible; that the river commenced rising about the 15th' day of January, and continued until it had attained the height of about twenty feet, the boat in question coming up with the increase of water, and keeping as near as possible to the water line. That on the night of the 16th or 17th of January, the river commenced falling rapidly, and it was necessary to back the boat referred to somewhat further out in the stream than the boats above and below, in order to avoid one of the said piles of pig metal, lying at or near her bow; and that, while in this position, it struck on one of the piles of metal and was also struck near the water line by some floating body, probably a raft or coal boat, and a hole knocked in its side, in consequence of which it sunk; that it was raised again at an expense of about $420, and afterwards was sold for the sum of $3000. The plaintiffs claimed that the loss of the boat was a consequence of the neglect of the wharf-master, in permitting the metal aforesaid to lie upon the wharf, in violation of an ordinance of the city, and that the defendants were therefore liable for the injury inflicted by the boat, raft, or other substance which impinged, against their vessel. On the trial of the cause, the plaintiffs gave in evidence the 1st, 5th, and 7th sections of an ordinance passed on the 21st March, 1842, relating to wharves and landings, and also the 3d section of another ordinance, of the date of July 29, 1844. On the trial, exceptions were taken to the admission and rejection of evidence, which were, however, not remarked upon by the Court in the opinion. A number of points were submitted on each side. Shannon, President Judge, inter alia charged:— The borough of Pittsburgh was incorporated by Act passed the 22d of April, 1794, and by a second Act of Incorporation, repealing the former, on the 5th of March, 1804. By the last Act it was provided, “ that it shall, and may be lawful for the Burgess and Town Council, or a majority of them, by and with the consent and approbation of a majority of the taxable inhabitants, &c., to authorize any person or persons, owning lots bounded by the Allegheny river and Water street, on the Monongahela river, to build wharves and erect buildings thereon, opposite their respective lots, subject, nevertheless, to such rules,regulations, and restrictions, as the corporation may deem necessary for the construction of wharves within the limits of the borough. Provided, that such wharf or wharves shall be so constructed as not to obstruct or impede the navigation of said rivers.” But this Act was virtually repealed by the Act of 18th of March, 1816, entitled an Act “ to incorporate the City of Pittsburgh.” By this last statute, “ the inhabitants of the borough, as the same extends, and is incorporated, between the rivers Allegheny and Monongahela, and also to the middle of each of said rivers, and as far down the river Ohio, to such point on the same, at which two lines, one running down the middle of each of the said two first-mentioned rivers, shall intersect, &c., are hereby constituted a corporation and body politic, by the name and style of ‘ The Mayor, Aldermen, and citizens of Pittsburgh’—having perpetual succession—and they and their successors, at all times, for ever, to have, possess, and receive, lands, hereditaments, liberties, franchises, jurisdictions, &c., and by that name they are made capable and able in law, to sue or to be sued, plead and to be impleaded, &c., and for that purpose to have and use a seal.” And by an ordinance passed 24th August, 1816, it is declared, “ That if any person or persons shall erect, or attempt to erect, a wharf or wharves, or any kind of building whatsoever, on the bank of the Monongahela river, within the bounds of the city, it shall be the duty of the Mayor, on information being given, to remove all materials,” &c. &c. The 3d section of same ordinance declares, “ That it shall be the duty of each and every person who may have made any fence, or other enclosure, or have erected any building; of what kind soever, before the passage of this ordinance, to remove the same within fifteen days’ notice,” &c., and in default that the street commissioner shall have it removed at the expense of the owner. By section 4th, &c., the city dedicates and declares the said ground and street to the public use,” and for that purpose it became, under proper regulations, free and open to the public. Reference made to ordinance passed 7th September, 1816. To show that it is a public wharf, &c., read Book of Ordinances, Layng 321, 323, page 176-5-4. Ordinance passed 7th January, 1825, creating the office of wharf-master, section 5 ; and section 6, pointing out his duties. The Act of 31st March, 1836, relating to Duquesne Way, throws light on the subject of public landings, for it declares, that the space lying between Duquesne Way and low water mark of the Allegheny river, shall for ever thereafter be occupied, used, and employed as a public landing. And the Councils have full power to make such rules, regulations, and by-laws, regulating the use of the same, as they may think proper, not inconsistent with the laws of the Commonwealth, &c. See Layng’s Ordinances, page 57. He observed that it will be seen, from all that has been collected, that this wharf is declared open for free and public use. By the law of nature, and the civil law, the shores of navigable rivers, as well as the shores of the sea, were free and open to every body ; yet in all nations which have built their policy on the feudal laws, such shores, and the tolls arising from landing thereon, ahvays belonged to the sovereign, as a branch of his royal prerogative. In England, the king had the right of appointing ports, and having such right, the stat. of 4 Henry 4, ch. 20, was made to strengthen and confirm that right. Restrictive regulations were afterwards enacted, which being found too narrow, by stat. of 14 Oar. 2, c. 11, s. 14, power is given to the crown to assign, by commission, “ all such further places, ports, members and creeks, as shall be lawful, for landing and discharging goods.” And by same statute, all persons are prohibited to land or discharge goods, &c.,” “ but only upon such open place, key or wharf, as shall be so assigned.” The Constitution of the United States regulates commerce, as well between the States, as with foreign nations. It will thus be seen that in England, between low water and ordinary high water of the ocean, and wherever the tide ebbs and flows, or in the navigable rivers, is part of the common highway, over which all citizens, and aliens, may sail. In that country, this is vested in the king; here it is in the Commonwealth. There and here, originally, goods might be landed anywhere, on permission from the owner of the adjacent land. Now, in both countries on account of revenue, and for other purposes, ports of entry are established, at which alone certain goods can be legally landed, except in case of storm and distress. In that country, and in this, the governments have exercised the right of building wharves, &c., for the improvement and convenience of trade, at the intermediate space between high and low tide, and beyond low tide. In 1816, as we have seen, the defendants dedicated all the space between Water street and low water mark, to the public use ; and it is paved down that far, as the evidence on both sides would seem to show ; and actually used. This is a public or common wharf, unto which all persons may come, under the proper and reasonable rules, to lade or unlade their goods, and has ceased to be what it was under the old borough charter, juris privati, or of a private nature. The right to erect private wharves is taken away—the grant is repealed and the public use is declared. He further charged that under the laws of the United States, this has been declared a public port. He further charged that the owners of a public port or wharf are of common right bound to keep it in repair. This is a consideration for the toll which they receive. That a corporation laboring under such obligation in respect to their wharves or docks,, will also be liable for special damage to individuals, who may recover by action on the case: 1 Hawk Pl. Cr., 76, 369; 2 Ch. Cr. Law, 333, 352-3; 603-4-5; 5 Burr. 2700; Cowper 86; 4 Bl. Com. 167. That this corporation having assumed the control and management of the wharf, became, at all events on payment of tolls, liable to keep the Avharf or landing in proper condition. The question of payment of toll for the boat on the occasion in question, was referred to the jury. Also that a wharf should be used only for the legitimate purposes intended by its construction and dedication to public use. That merchandise or lading may be permitted to remain upon it a reasonable time, according to the circumstances of the locality and the nature of the trade. But to allow it to remain beyond such reasonable time would tend to defeat the objects intended by its structure. Also that if the defendants acted unlawfully or negligently in the matter, this did not excuse the exercise of ordinary care on the part of the captain and crew of the boat. That they were bound to take-all reasonable precautionary measures to avoid collision with the metal, and he referred it to the jury to say, whether by remaining at the wharf they consented to take the risk of a probable rise in the river. Also, that the plaintiffs being common carriers, were bound in entering the port to act in conformity to its regulations. He referred to the case of Bacon v. Arthur, 4 Watts 437, where an injury caused by reason of sand banks, occasioned by the construction of a dam, was considered actionable. He referred to the jury whether there was such neglect on the part of the plaintiffs, as no man of ordinary prudence and skill would have fallen into—or whether or not, in endeavoring to get clear of the metal, those in charge of the boat inevitably got into the position which occasioned the injury. In December, 1852, verdict was rendered for plaintiffs for 16563.85. There were thirty assignments of error; as to the more material ones, see the sketch of argument and the opinion of the Chief Justice. Note.—The section of an ordinance relative to the wharf-master, passed on 2d March, 1842, provides that if a certain arrangement of boats designated be impracticable, the wharf-master shall have discretionary power as to the location of any vessel as long as the difficulty shall exist. See. 2 of an ordinance of 15th of March, 1845 : That every steam, keel, or fiat boat, &c., shall land in such places, make fast in such, manner, and remove from or to such landing-place as the wharf-master, each for his wharf, may direct.