15 Pa. Super. 42 | Pa. Super. Ct. | 1900
Lead Opinion
Opinion by.
This suit was brought to recover damages for the death of the plaintiff’s son, which was alleged to have been caused by the defendants making and leaving a hole in the bottom of the Allegheny river. The defendants were sand diggers and conducted their business by means of a steam elevator dredge, which was so arranged that scoops or buckets were lowered through the water to the river bottom, and by gravity or artificial force were driven into and gathered the sand and gravel, which was then hoisted and screened, the sand being deposited in a scow or barge for trade purposes and the larger stones and gravel falling back into the river at the side of the dredge. On July 23, 1899, at about 5 o’clock in the afternoon, the plaintiff’s son, aged fifteen and a half years, and accompanied by another boy of about the same age, went into the Allegheny river between the city of Pittsburg and the borough of Aspinwall for the purpose of washing and bathing; after removing his shoes, he waded out to a gravel bank about four feet from the shore, where he took off his clothing and entered the river. Having waded about for a short time in water which reached to his arm pits, he was seen by his companion to be in a drowning condition at a point about ten feet below the gravel pile and about twenty to twenty-five feet from the bank. His body was recovered the following day near to the place where he sank, and in a sand hole which had been made on April 27 previous, by a steam dredge which was owned by the defendants. The boy had been bathing in the river at the same place on the Thursday before, and when he entered the river on July 23, his attention was called to the many sand holes forty or fifty feet up the stream, which had been made by the sand dredges. The usual
Were the defendants guilty of negligence in excavating sand from the river bed at this place and leaving the hole unmarked and unprotected? It is not pretended that the acts of the defendants in removing the sand were in any sense unlawful. They were not trespassers and the evidence shows that their operations were recognizéd as an important business industry, 'which gave employment to about twelve steam dredges in the two rivers. The work did not interfere with navigation but, if properly conducted, was an aid to it, and did not in anyway affect the volume or purity of the water in its natural flow. The sand secured was used in various trades, in furnaces, in building operations, and in the construction of concrete streets and pavements. It was clearly shown that it was not possible or practicable to fill up the holes made in removing the sand, nor was it feasible to locate the sand holes by floats or signals.
The plaintiff urges that as the Allegheny river is a navigable stream, all of the people have a right to bathe therein, and that the legal duty to the public was violated in not filling or marking the holes made in the river bottom. The highest right in a navigable stream is that in the interest of commercial traffic on its waters ; this right is superior to the right of fishing (Flanagan v. Philadelphia, 42 Pa. 219; Cobb v. Bennett, 75 Pa. 326); to the enjoyment of property in an oyster bed; to ferry privileges; to the right to lay pipes in the stream, and to use and maintain bridges, though in some places it has been held to be coextensive with the latter (16 Am. & Eng. Ency. of Law, 260, notes); and to the right to take water from the stream for manufacturing purposes: Philadelphia v. Gilmartin, 71 Pa. 140; Gallagher v. Philadelphia, 4 Pa. Superior Ct. 60. It has been held in a number of cases in this state that the right to use the water in the public streams is one that belongs to the public at large; the soil and the water found between the lines that describe low water mark being maintained as
The right to bathe in a public stream is not an absolute right. It is qualified by as fixed rules as those which determine the privilege. It is permitted only at certain places, and is of the same character as the right to use or to take water from the stream. Even at common law, bathing in the sea near inhabited houses was prohibited (Rex v. Crunden, 2 Camp. 89) near a public footway: Reg. v. Reed, 12 Cox C. C. 1; Wharton, Criminal Law, sec, 1470. The same rule would apply to a place as public as that described in this case, between the city of Pittsburg and the borough of Aspinwall. The right of the plaintiff’s son to bathe in the public river was subject to the rights of the public, and to the duties which he owed to that public. Had the hole in which the young man was drowned been made in clearing the channel of the river for the purposes of navigation it would hardly be contended that there could be a recovery; nor would it be if he had become fastened
We heartily agree to all that has been urged in favor of free baths in crowded cities for those who have not, and cannot have, the advantages of such luxuries at their own homes, and we join in the regret that the life of a young mechanic should be lost under such circumstances, but the proposition presented in this case is a very different matter. The boy had no legal right to enter the river for the purposes of bathing therein at the place where he did. It was not at a public street or crossing, but 200 feet distant from one. It was not at a known bathing place, but was in the open river between a populous city on one side and an active borough on the other,
It is to be legally presumed that a boy of the age of fifteen and a half years is of sufficient capacity to be sensible of danger, and to have the power to avoid it: Oakland Ry. Co. v. Fielding, 48 Pa. 320; Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35; Kehler v. Schwenk, supra.
In addition to the natural obstructions and hidden dangers mentioned in Winpenny v. Philadelphia, 65 Pa. 135, the plaintiff’s son would necessarily expect to encounter artificial pitfalls and gravel banks — on one of which he undressed for his bath — made by sand dredges, which would endanger his movements from place to place, and which would, to a prudent person, give notice of danger. He voluntarily entered the river in pursuit of his personal pleasure, and while not a
The issue raised by the plaintiff, in the light of the evidence as we assume it (that the boy was drowned in a hole made by the defendants), is to be determined as a question of law. The facts and inferences to be drawn from them are undisputed, the measure of duty is determined the same under all circumstances, and the rule of duty may be accurately defined..
We have examined both phases of this case and conclude that under the evidence the defendants .were not negligent in digging the sand from the river bottom at the place where the plaintiff’s son was drowned, nor were they negligent in leaving the excavation in the condition described in the evidence, and the boy was guilty of contributory negligence to a degree that prevents recovery by the plaintiff.
The judgment is reversed.
Dissenting Opinion
dissenting:
After a careful examination of the evidence, I am constrained to the conclusion that the questions, whether the deceased had such knowledge of the special and peculiar risk as made his act in going in bathing at the place where he was drowned negligent, and whether it was feasible for the defendants to give warning of the danger consequent upon their acts and whether under all the circumstances, the giving of such warning was required by ordinary care, were .questions of fact for the jury. I am unable, therefore, to concur in the judgment of the majority.
