Appeal, No. 1 | Pa. | Feb 20, 1893
Opinion by
The plaintiffs’ averment is negligence in not keeping a street in repair, whereby, as they allege, they sustained damage: 1st, injury to their horse; 2d, injury to their truck; 3d, loss of service of horse; 4th, delays and interruption to business because of bad condition of street.
These are the undisputed facts, as proven at the trial: Wall street is a narrow way or alley, fourteen feet wide, running from Sixth to Seventh streets between Catharine and Christian. Before February, 1891, the buildings on each side of the street were occupied as dwellings; then the plaintiffs, who had a paper-store at 617 Chestnut street, as an adjunct to their business, turned two of the buildings on Wall street into one, and occupied it as a rag, and paper-warehouse ; up to that time the street had been paved with cobble stones; plaintiffs then com-, menced hauling over the street to their warehouse, and continued so to do down to the commencement of this suit in September, 1891. This hauling in street traffic is known as “ heavy hauling,” the ordinary load being 6000 pounds, and of course the trucks to carry and the horses to draw are correspondingly heavy. As a result of this heavy hauling on a lightly paved narrow way, it soon got in a very bad condition. One of plaintiffs’ horses, by the necessity for extra effort in drawing loads over it, became so sprained and broken down that in five months his value depreciated from three hundred dollars ($300) to seventy-five dollars ($75). A truck which cost three hundred dollars ($300) was so racked and worn that it was not worth one hundred dollars ($100). Plaintiffs’ business suffered, for not only was their own access to the warehouse more difficult, but customers were delayed, and thereby deterred from doing business with them.
It is not very hard to see what the jury saw, that these plaintiffs would have been considerably better off if this way had been paved for heavy hauling. Seeing the plaintiffs had suffered a loss, and how it might have been saved them by a pavement better suited to the warehousing business, the jury undertook to make them whole by a verdict against the city for three hundred and sixty-five dollars and thirty-five cents ($365.35) the court entered judgment and the city took this appeal.
On these facts, was the city answerable in damages ?
Unless a legal duty with respect to this street was imperative on the city, from the neglect of which a special injury resulted to plaintiffs, the judgment is wrong.
It is settled in this state 'that a city, or other municipality, is held to no higher4 measure of duty than that of keeping its highways and streets in a reasonably safe condition for the use of the public, having in view the ordinary reqrrirements of the public. No duty is imposed with respect to a particular individual whose requirements are special to him. When a highway is opened, the public is invited to travel upon and use it in such manner as accords with its general design and structure ; they are not invited to use it for a purpose wholly and obviously unsuited to its strength, and which was never contemplated by its builders; are not invited, as this court has lately held [
But so far as concerns the design or material of the structure of the street or highway, that is a matter in the discretion of the municipality; no legal duty to pave with a particular material, or in a particular method, is imposed by law; nor is there any legal obligation for uniformity of construction on all the
Of course on all municipalities, created and existing for the public benefit, there is imposed a political duty of maintaining the public improvements in keeping with the times, increase in population, and business interests; but this duty is within the legislative discretion of the city. If it be neglected, the public suffers in falling off of business, decrease of population, exasperating delays and hindrances to travel and traffic, and depreciation of values. In such case, each individual of the corporate community suffers pecuniary loss; some, by reason of particular locality or business, greater than others ; but this gives them no right of individual action against the city, because of the familiar principle that “ a public right cannot be vindicated by a private action.” Clearly this alley was not paved to suit the new and unexpected business plaintiffs chose to put upon it ;■ it was very narrow, and paved with cobble; before they went there the city authorities, in the exercise of their discretion, doubtless ■ thought this sort of pavement sufficient for the traffic then upon it. The plaintiffs, with all this knowledge, took two of the buildings, turned them into a warehouse, and at at once commenced what was wholly unsuited to cobblestone, the heavy hauling incident to warehousing; the surface gave way, and the street got in bad condition. The real ground of plaintiffs’ complaint is, as disclosed by the evidence, the city did not keep pace in improvements with the demands of business on that particular street; that is, it ought to have taken up the cobble and repaved with Belgian block. Perhaps it ought, but neither the jury nor we are the judges of that; it is a question for the city.
The argument that from the evidence the plaintiffs sustained a special damage, is not convincing; their damage was special in amount only, not in kind. The vexatious daily strain of heavy hauling over this bad way necessarily in the course of a few months broke down their horse and truck. There was, as to both, a serious depreciation in value, and greater loss to them than to others of the public, who used the street less ; but the others
The appellant’s first assignment of error, that the court erred in refusing to direct a verdict for defendant, is sustained, and judgment reversed.
Clulow v. McClelland, 151 Pa. 583" court="Pa." date_filed="1892-11-07" href="https://app.midpage.ai/document/clulow-v-mcclelland-6241090?utm_source=webapp" opinion_id="6241090">151 Pa. 583.