City of Scranton v. Catterson

1. The city of Scranton is an incorporated city. C., while driving through its streets, struck a water plug, projecting from the ground in the middle of the street, and he was thrown from his wagon and injured. The plug was placed in the street by a water company that was incorporated prior to the incorporation of the city. As originally placed, it only projected about two inches from the ground, but a few months previous to the accident the street had been lowered, and the plug was thus left to project about six inches from the ground. The street commissioners had frequently seen the plug, and knew of its existence at the time of the accident. C. brought an action for damages against the city, and the defendant asked the court to chai'ge that if the obstruction was placed in the street by the water company, under authority from the state, the city was not liable: Held, affirming the court below, that it mattered not who placed the obstruction in the street, provided the city had notice of its existence and failed to remove it. 2. The water company had the right to put in the plug but it had no authority to place and maintain an obstruction on the street. Should they construct a dangerous public nuisance on the highway, the duty of the city, after notice, is plain. And where, as here, the plug was properly placed, and afterwards the city lowered the grade of the street, causing the obstruction, it was an .inexcusable neglect.

Error to the Court of Common Pleas of Lackawanna county: Of July Term 1879, No. 57. Case by John M. Catterson against the city of Scranton, to recover damages for injuries received from the alleged negligence of the city in allowing an obstruction on one of its streets. From the testimony on behalf of the plaintiff, it appeared that in December 1877,. he was driving a wagon with two horses on a slow trot up Penn avenue, in the city of Scranton, and in turning into Mulberry street the left front wheel of the wagon struck the head of an iron water-plug, which projected about six inches from the ground, and which plaintiff did not see,.and that by reason thereof he was thrown from the wagon and injured. The plug was about the middle of the street, and had been placed there by the Scranton Gas and Water Company before the incorporation of the city. It had originally only projected about two inches from the ground, but some few months before this occurrence the city had lowered the level of the street, and it was thus made to project several inches more. The plaintiff gave in evidence the Act of Assembly incorporating the city of Scranton in 1867, wherein it was authorized to open streets, and the duty imposed upon it of regulating them. Several witnesses for the defence testified that they knew of the plug, that wagons had gone over it without accident, but that knowing its whereabouts they avoided it. The street commissioner, on cross-examination, testified that lie lived near the point of the accident; that he had frequently observed the plug; that when he saw it he thought it projected about five inches from the ground. The defendant offered in evidence the charter of the Scranton Gas and Water Company: Pamph. L. 1856, p. 599. Offered for the purpose of showing that the legislature authorized the Scranton Gas and Water Company to put the plug in at the point of the accident; that the city has no control over it; that the said company is not the servant or agent of the city in this matter, and is not responsible to the city, but to the state. Objected to and objection sustained. (1st assignment of error.) The following is one section of the charter: “ The said company shall have power to provide, erect, and maintain all works, machinery, fixtures, or engines necessary or proper for making, raising, and introducing into the village of Scranton, Luzerne county, a sufficient supply of gas and pure •water; and for that purpose may provide, erect, and maintain all proper buildings, cisterns, and reservoirs for the reception of the gas and water to be introduced, and for this purpose they are authorized and empowered by themselves, their agents, engineers and -workmen, to take water from any stream, and with their tools, carts, -wagons and horses, to enter upon lands and enclosures, streets, lanes and alleys, roads, highways and bridges, as may be necessary to occupy or to obtain necessary materials for the construction of the said works, and to occupy, ditch and lay pipes, and from time to time to repair the same; and if any injury be done to private property, the said company shall make- compensatiqn therefor in the manner hereinafter provided.” .The defendant, inter alia, submitted the following points to which are appended the answers- of the court, Handley, P. J. 2. Plaintiff was bound to use ordinary care and caution, and if he could by such care have avoided the accident he cannot recover. The least contributory negligence will prevent a recovery. Ans. “ This point we affirm; but, as we said to you in our general charge, if you find that there was the least contributory negligence on the part of the plaintiff, and there was also negligence on the part of the city, it is not for you to balance the scales of justice and say -which one of these parties is to blame. The law casts the responsibility upon this plaintiff of using ordinary care in passing over the public highways; if he failed to use that care he must suffer the consequences and cannot recover.” 3. If the jury believe that the obstruction in the street was placed there under .authority of the state, and independent of the city authority, then the action should be against the authority guilty of the obstruction. Ans. “ This point we cannot affirm.” (2d assignment.) 4. A person driving over a road with which he is unacquainted should carefully examine the way ahead, especially when turning corners, and a non-compliance with this is negligence. Ans. “ This point as presented we cannot affirm.” (3d assignment.) 6. The city of Scranton is not liable for injuries resulting from obstructions placed in the street by the Scranton Gas and Water Company, in the pursuance of its lawful 'business under the authority given by its charter from the state. Ans. “This point we cannot affirm. We have no hesitation in saying to you that the Scranton Gas and Water Company no doubt had the right to construct such works as the law-making power of this state authorized her to do; but neither the Scranton Gas and Water Company nor any other company can put a structural obstruction in the public highways. If the Gas and Water Company did put this obstruction there, and the attention of the city was called to it, and she failed to compel the company to remove it, and it remains there, and an injury of this kind occurs, without any contributing negligence on the part of the defendant, it is the city that must first answer, although the Gas and Water Company may afterwards have to answer. (4th assignment.) Verdict for plaintiff, and after judgment thereon defendant took this writ and alleged that the court erred in rejecting the testimony and in the answers to the points as set forth in the above assignments of error.