95 Pa. 287 | Pa. | 1880
delivered the opinion of the court,
This was an action in case to recover damages for the injury which the defendant in error sustained in one of the streets of the city of Allegheny.
In September, prior to the election of 1876, a “Liberty Pole” was erected in the street by a large number of citizens, as expressive of their political convictions. The street was sixty feet wide, and and the pole stood about eight feet from the curbstone and four feet
The court below held the erection of this pole on the street a nuisance per se, and if the city authorities, whose duty it was to remove it, had knowledge of its being there and allowed it to remain, and the defendant in error, without negligence on his part, was injured by its falling, the city was liable. The correctness of this view presents the main question in- the case.
Any unreasonable obstruction of a highway is a public nuisance, for which an indictment will lie. It is not, however, every obstruction in a highway that constitutes a nuisance per se. When it is not, and whether a particular use, is an unreasonable use and a nuisance, is a question of fact to be submitted to a jury. Highways are intended for, and devoted to, the purpose of public travel, and every person may exercise that right, but in a reasonable manner. Due regard must be had to other rights. Thus^ stone, brick, sand and other materials necessary to be used in building may lie placed in the street in the most convenient manner and suffered to remain for a reasonable time. This may be said to result from necessity in building. But the. right to partially obstruct a street does not appear to be limited to a case of strict necessity, it may extend to purposes of convenience or ornament, provided it does not unreasonably interfere with public travel. Thus public hacks, by authority of the municipality, may stand in particular parts of the streets awaiting passengers, although the public are thereby excluded from using that part of the street most of the time. So shade trees may stand between the sidewalk and the central part of the street without constituting a nuisance per se. They may become a nuisance by disease or decay, yet the mere partial obstruction of a part of the street, when in fact such obstruction does not interfere with the public use, does not create a nuisance. It does not work that hurt, inconvenience or damage to the public necessary to constitute the offence.
The erection of liberty poles appears to have been almost coeval with the birth of our nation. As the name imports, they were erected to symbolize our liberties and as a mode of proclaiming that we had thrown off all allegiance to the government of Great Britain. At first they appear to have been used as expressive of concurrence in the principles embodied in the Declaration of Inde
As a general rule, one is answerable in damages for the consequences of his faults only so far as they are natural and proximate, and may therefore have been foreseen by ordinary forecast, and not for those arising from a conjunction of his own faults with circumstances of an extraordinary nature: Morrison v. Davis, 8 Harris 171; McGovern v. Lewis, 6 P. F. Smith 231; Pennsylvania Railroad Co. v. Kerr, 12 Id. 353; Fairbanks v. Kerr, supra ; Scott v. Hunter, 10 Wright 192. In the present ease, the breaking of the pole was the proximate cause of the injury.
If then, the jury should find from the evidence that the pole was sound and so secured and protected that careful, prudent and sagacious persons considered it safe, and it was broken by a wind of unusual violence, the injury of the boy was a result too remote from the erection of the pole to make the city liable in damages therefor. Nor did the city become liable if the breaking occurred by reason of a defect in the pole unknown to the city authorities, and which could not be discovered by a careful examination of the pole as it stood.
In so far as the first, second, third and fourth assignments are in conflict with this opinion they are sustained. There is no error in the fifth, nor, as a whole, in the sixth, although some parts of the offer, if presented separately, might be admissible.
Judgment reversed, and a venire facias de novo awarded.
Justices Gordon and Trunkey dissented from so much of this opinion as overrules the decision of the court below that the erection and continuance of the pole on the street was a nuisance per se.