107 Pa. 530 | Pa. | 1884
delivered the opinion of the court, January 5th, 1885.
The first four assignments of error may be considered together. They involve the proposition that if the wharf from which the property of the plaintiffs below was lost was under the exclusive control and regulation of the defendant city authorities; that said defendant city derived a revenue from its use ; that plaintiffs had paid wharfage for its use to said defendant city; that the defendant city authorities were guilty of negligence in allowing dirt, rubbish, stone and débris to remain on said wharf, after notice, and if in consequence of such neglect the plaintiffs suffered loss, the defendant city is liable to the plaintiffs for the injury thereby' sustained.
The mode of stating the above varies somewhat in each of the four assignments, which contain the plaintiffs’ second,' third, fourth and fifth points respectively, but the difference is not so essential as to make a separate discussion of them necessary. The court below affirmed each of the points.
It was not controverted at the trial below that the plaintiffs occupied a portion of the wharf belonging to the city of Allegheny, nor that they paid rent or wharfage therefor, nor that at the time of the accident they had a certain amount of property at their wharf, and that a rise in the river brought down a large amount of ice, and carried away and destroyed a large amount of plaintiffs’ property.
The jury have found that the wharf at which plaintiffs’ property was lost was under the exclusive control and regulation of the defendant city authorities. The receipts for wharfage show that the plaintiffs had a mere license to use the wharf at a stipulated price, and there was nothing in the case to show that the city did not exercise authority and control over it. It also appears that after the city had granted to the plaintiffs the right to use the wharf, it passed an ordinance giving the Pittsburg and Western Railroad Company
It was not denied that the city had authority to grant the railroad company the right to widen their tracks at this point. It, must also be conceded that if the railroad company left the wharf in a dangerous condition, as between the plaintiffs and the city, the latter would be responsible for the consequences of such condition. We have nothing to do with any question that might arise between the railroad company and the city, but the plaintiffs certainly have a right to look to the city for redress, for it was upon the city the duty was devolved of keeping the wharf in a safe condition. It was decided in the City of Pittsburgh v. Grier, 10 Harris 54, that “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.” Under this authority, we think the ruling of the court below was fully justified.
The fifth assignment alleges that the court below erred in instructing the jury that if they found for the plaintiff they should allow interest. We see no error in this. Weir v. County of Allegheny, 14 Norris 415, is not in point. That was a suit against the county to recover damages for the destruction of the plaintiff’s property by rioters, and it was held that as the suit was brought under a special statute which gave no interest, none could be recovered. It is laid down by Air. Sedgwick, in his Measure of Damages, vol. 2, p. 158, that interest may be recovered “ where it can be claimed as a right, either because there is an express contract to pay it, or because it is recoverable as damages which tlie party is legally bound to pay, or for money or property improperly withheld.” In the ease in hand interest was clearly recoverable as a part of the damages. Without the addition of interest on the value of the property from the time it was destroyed, the remedy of the plaintiffs would be inadequate. In the case of Pennsylvania Railroad Company v. Patterson, 23 P. F. S. 491, there was a recovery of interest under analogous circumstances, and although error was not assigned to such recovery,
The sixth assignment does not require discussion. It would have been bald error for the court to have affirmed the defendant's first point, the effect of which would have been to withdraw the case from the jury.
Nor is there any merit in the seventh assignment. No matter what remedy the plaintiffs might have against the railroad company, it could not affect their remedy against the city which owes them a direct duty.
It was not error to refuse the defendant’s fifth point in the phraseology in which it was put. The doctrine there stated does not apply to this case, for the reason as was stated in the City of Pittsburgh v. Grier, supra, at page 68: “ But the rule is inapplicable to this case, for even if we assume that both parties had equal opportunity of seeing and understanding the danger, they were not bound to equal degrees of vigilance. The city was held to the utmost care of the wharf ; the owners of the boat onty to that common prudence which would keep them clear of a manifest peril.”
There was "no error in refusing the defendant’s eleventh point, for the reasons already in part stated. There was nothing in the possession or occupancy of the wharf by the plaintiffs that would relieve the city from its duty to keep the wharf in repair. There is no analogy between this ease and the ordinary one of landlord and tenant. The city, by granting wharf licenses or privileges at a stipulated rent, does not relinquish its general supervision and control of the property, nor relieve itself from responsibility. The fact that it granted the rights before mentioned without question to the railroad company, showed that it exercised dominion and control over the wharf. Aside from this, the grant of such license was a direct authority from the city to the railroad company to do the acts complained of, and which resulted in the destruction of the plaintiffs’ property.
No objection is apparent to the question contained in the tenth and last assignment. The pile of stone referred to was one of the obstructions which it is alleged caused the accident. An inquiry into its position and effect was certainly pertinent, and no error is seen in the admission of the evidence.
We-find no error in this record.
Judgment affirmed.
