Dotey v. District of Columbia

25 App. D.C. 232 | D.C. Cir. | 1905

Mr. Justice Morris

delivered the opinion of the Court:

Undoubtedly there was error in the action of the trial court in directing a verdict for the defendant. There is no testimony whatever in the record before us tending to show contributory negligence on the part of the plaintiff, and that point has been abandoned by the appellee in the brief on its behalf, and the contention that the defendant is not liable for the condition of the water plug, for the reason that it was outside of the public sidewalk and within what is designated as the parking, is wholly without merit.

The sidewalks of the city of Washington extend from the curb line bounding the carriageway of the street, to the building line of the houses. They are wholly the property of the United States, and they are wholly subject to the control of the municipal authorities of the District of Columbia. That a portion of these sidewalks should be in a measure withdrawn from the public travel upon them, and set apart as parking, does not change or diminish in any manner the control of the District over them. This is a mere matter of convenience and of municipal ornamentation. Many things are allowed on the sidewalks, such as trees, carriage steps, grass plots adjacent to the curb line, fire plugs, and the like, things of beauty or of convenience or of necessity, which of themselves impede travel, and yet are not nuisances, but of which everyone is bound to take notice. Wolff v. District of Columbia, 21 App. D. C. 464, S. C. 196 U. S. 152, 49 L. ed. 426, 25 Sup. Ct. Rep. 198; Howes v. District of Columbia, 2 App. D. C. 188. And so, likewise, the portions of the sidewalks adjacent to houses, and known as parking, are withdrawn from general use by the public as sidewalks, and are committed to the immediate care and custody of the adjacent owners or occupants. And it may well be that pedestrians wandering into these spaces, when they have been marked by being converted into grass plots, or otherwise in some distinctive manner segregated from the parts reserved for public travel, cannot hold the District of Columbia liable for any obstruction which they may encounter there. But the parking, so called, from which the public travel is excluded, does not mean, and was never intended to mean, all the portion inside the general line of travel. . The paths to the houses are as much parts of the sidewalks now as they ever were. The control of the municipal authorities over them is as complete as it has ever been. The adjacent owner may not disturb that path any more than he can any other part of the sidewalk, without the consent of the municipal authorities. He may not pave it as he pleases. He may not substitute one pavement for another. He may not elevate or depress it, except with the permission of the municipal authorities. Indeed, even as to the grass plots, which actually constitute the parking, he must use them in entire subordination to the superior control of the municipality.

Then, as to these water plugs, they are put down by the municipality, and the adjacent owner has no control over them, and no right to interfere in any manner with them, except by permission of the municipal authorities; and whether they are placed in the main sidewalk or in the portion of the sidewalk leading to the house, if they are placed in either, it is the duty of the municipal authorities to see that they do not become dangerous obstructions to those having occasion to use the sidewalks.

The contention of the appellee would tend to throw upon the adjacent owner the burden of keeping the portion of the sidewalk leading to his house, and any water plug that may have been constructed therein by the municipal authorities,. in safe condition. That is the necessary result of their argument; for if they themselves are not responsible, then the adjacent owner must, or at least should be, or else no one is responsible for dangerous obstructions on certain parts of the public highways of the city of Washington. The argument is not advanced in so many words, but that is the result of it; and the result is sufficient to show the absurdity of the contention.

These considerations are so plain and obvious that it seems strange to us that they were overlooked at the trial of the case. There is no substantial difference in principle between this case and that of Mosheuvel v. District of Columbia, 191 U. S. 247, 48 L. ed. 170, 24 Sup. Ct. Rep. 57, except that this case is a very greatly stronger one for the plaintiff. There was grave, although insufficient, ground in that case for the defense of contributory negligence on the part of the plaintiff; there is none whatever in the case under consideration. There is no reasonable ground for the denial of negligence on the part of the District in either. It is claimed that there is a difference, because in the Mosheuvel Case the record shows the projecting water plug which caused the plaintiff’s injury to have been “in the sidewalk,” and it does not appear whether there was any parking in the street. But, as we have stated, this is of no consequence whatever.

We think that it was error to withdraw this case from the jury, and for this error the judgment appealed from must be reversed, with costs. The cause will be remanded to the Supreme Court of the District of Columbia, with directions to vacate the judgment and the verdict of the jury therein, and to award a new trial. And it is so ordered. Reversed.