Gold v. City of Philadelphia

| Pa. | Feb 14, 1887

Mr. Justice Paxson

delivered the opinion of the court, February 14th, 1887.

The learned and able report of the referee in this case renders an extended discussion of it unnecessary. There is no allegation that he has not found the facts correctly, but the plaintiff contends that he has erred in his conclusions of law. In other words that upon the facts as they are conceded, she is entitled to recover.

The plaintiff is the proprietor of an inn at Chestnut Hill, fronting on the main road, or Germantown avenue, at which a large and prosperous business had been carried on for a long time. Germantown avenue was a turnpike road for many years and while such was kept in reasonably good condition. The city took the road in 1874, and since that time until this suit was brought, said street has been neglected by the city authorities to a degree that rendered travel upon it exceedingly inconvenient, if not dangerous. The plaintiff alleges and the referee finds that in consequence of the ill condition of the road, her business fell off to a considerable extent and the profits of her inn were correspondingly diminished.

The learned referee finds, and this finding is the subject of the first assignment of error, that “I am of the opinion that although the evidence establishes the duty of defendant to keep the street in repair, and that the defendant has neglected to perform that duty, and that consequential damage has been suffered by the plaintiff as the result of that negligence, I do not think she has the right to maintain this private action. I therefore find and report in favor of the defendant.”

This finding raises the pivotal question in the cause. It is one of very considerable public importance, being substantially whether a municipal corporation, charged with the duty of keeping the highways in repair, is liable to the owner or occupier of property fronting thereon for the loss to his business resulting from the neglect of such duty.

The referee does not find that access was cut off from plaintiff’s property, nor that the highway aforesaid was impassable. It was, however, in such bad condition, that travel sought other ways when practicable.

It was decided by this court in Com. Ex. Rel. Attorney General v. The City of Philadelphia, 11 W. N. C., 485, that the authorities of the said city, after taking possession of this turnpike road, were not bound to keep it up as a macadamized road ; that it was required only to keep it in fit condition for ordinary travel, the same as other county roads.

The learned referee ruled this case upon the familiar and well settled principle, that one who is injured by a public nuisance, either in his person or in his property, cannot have his remedy by action, unless he can show a damage which is peculiar to himself, and different in kind and degree from and beyond that which is sustained by the general public.

The plaintiff contends that the referee erred in his application of this principle to the facts of her case. We do not think so. The injury was one common to all persons who traveled on the road and who resided thereon. The annoyance and inconvenience to some may have been much greater than to others, but it was of the same kind and differed only in degree.

It is significant that no Pennsylvania case has been called to our attention, nor am I aware of any, in which a recovery has been sustained under similar circumstances. The authorities cited for plaintiff, though numerous, do not meet the case. A large number of them were instances in which a traveler had been injured as a consequence of a neglect to keep the highways in repair. No one doubts that a traveler so injured has his remedy against the defaulting municipality for the obvious reason that he has sustained a special injury, not common to others. This principle has been settled by hundreds of decisions in this state and elsewhere.

Nor must we be misled by cases referring to business or trading corporations. They differ from municipal corporations in this that the former are organized for private purposes and for gain; whilst municipal corporations are organized solely for the general good of the people. When a duty is imposed upon a municipal corporation for the benefit of the public, no consideration or benefit is received by such municipality, as in the case of a trading corporation, hence no implication arises of liability to the individual citizen for any injury which he has suffered in common with other citizens resulting from a neglect of such duty. To sustain a contrary doctrine would be disastrous to municipalities, and consequently to the general public. If we once throw open the door to a recovery in such cases, how are we to measure the extent to which a public highway may be out of repair to entitle owners of property abutting thereon to recover damages ? Such questions would have to be referred to a jury whose standard of duty would be as shifting as their verdicts would be uncertain and in many instances oppressive.

The case of the Pennsylvania Railroad Company’s Appeal, 18 W. N. C., 418, cited by the plaintiff, has no application, for the reason that it arose between a private corporation and a citizen. The former was attempting to lay a switch in front of plaintiff’s property, having, as this court held, no authority to do so. The plaintiff claimed and proved a special injury, and the company was enjoined. I refer to this case only as one of many of the .same class, cited by plaintiff, and which are not in point.

I leave the case with these general remarks. The referee has collected the authorities with much care, and we are em tirely satisfied with his conclusions thereon.

Judgment affirmed.

Sterrett, J., dissents.