94 F. 618 | 6th Cir. | 1899
after stating the case as above, delivered the opinion of the court.
In relation to the first ground on which the right to recover was rested, the court charged the jury as follows:
“It being conceded, gentlemen, that the train of the defendant was unlawfully upon the public landing, in violation of the ordinance forbidding it to be there at all at that time, and that it frightened the horses of Hood and thereby caused the injury of which Hood died, a prima facie case of negligence •on the part of the defendant is presented, which will entitle the plaintiff to recover, unless it appears from the evidence that Hood was himself in fault, and that he was guilty of negligence which directly contributed to the injury.”
This instruction is assigned for error, and is the only ground relied on in argument for reversal, and presents the only serious question which could arise on this record. The contention of plaintiff in error is;: First, that, treating the ordinance in question as a valid police regulation, its violation is only evidence of negligence, which should have been submitted to the jury; and, second, that the ordinance was a mere contract, and not a police regulation, and that its violation was a breach of private contract, and not a violation of law. In determining the true construction and effect of this ordinance, it will be well to keep in view the law which would control the case
*622 “Mr. Wood, in his work upon Railroads, lays down what we regard as the' sound and reasonable rule in the following words: ‘It may be stated as a general rule that whatever is authorized by statute within the scope of legislative powers is lawful, and therefore cannot be a nuisance. But this must be understood as subject to the qualification that, where an act that would' otherwise be a nuisance is authorized by statute, it only ceases to be a nuisance so long as it is within the scope of the powers conferred. If the power conferred is exceeded, or exercised in another or different manner from that prescribed by law, it is a nuisance as to such exercise, or difference in the mode of its exercise. Whenever an act is authorized to be done in a highway that would otherwise be a nuisance, the person or company to whom the power is-given is not only bound to exercise it strictly within the provisions of the law, but also with the highest degree of care to prevent injury to person or property of those who may be affected by such acts.’ ”
In an extended note at page 75-9 of the work thus quoted from and approved the same author says:
“The rule is invariable that, where the statute imposes conditions upon the use of a highway for railway purposes, they must be complied with,, or the railway will be a continuing nuisance. Town of Hamden v. New Haven & N. Co., 27 Conn. 158; Com. v. Erie & N. E. R. Co., 27 Pa. St. 389; Inhabitants of Springfield v. Connecticut R. R. Co., 4 Cush. 63; People v. Dutchess & C. R. Co., 58 N. Y. 152.”
See, also, Harmon v. Railroad Co., 87 Tenn. 614, 11 S. W. 703, in which the doctrine of Railroad Co. v. Bingham is reaffirmed.
In Railroad Co. v. Naylor, 2 Ohio St. 235, the facts were that the charter of a railroad company merely fixed a few points through which the road was to pass from its commencement to its terminus, leaving the exact location of the road to the discretion of the corporation. After the road had been once located, the company undertook to relocate and to change and rebuild the road, and in doing so rendered the premises of the defendant in error less valuable than they had been before, for which suit was brought, and judgment recovered. On writ of error to the supreme court of Ohio, it was held that,, the company having once located the road, their power in. that respect ceased, that the relocation was unauthorized, and that the company was, consequently, liable for any damage done to property in the relocation of the road. The court, through Caldwell, J., said:
“The act of the railroad company in changing their location being unlawful, the next question arises, — whether they are liable to the defendant in error for the danjage which he has sustained by such relocation. It is contended that, inasmuch as the road as relocated does not touch his property, the company cannot be made liable. It is a general principle of law that a person is liable for all the damage done by his'illegal act, and this whether the injury was. intended or not. It is well settled that an action lies as well for damage to adjoining property, by stopping or impeding the travel on, to, or from a street or highway, as any other damage that can be done to property, although the property injured may not be touched by the obstruction. See Fletcher v. Railroad Co., 25 Wend. 462; Bingham v. Doane, 9 Ohio, 165; 5 Eng. Law &. Eq. 339; 29 E. C. L. 336.”
The doctrine thus declared does not proceed upon the ground that the construction and operation of the railroad under such circumstances is negligent, but upon the ground that the prosecution of the-business is unauthorized by law, and constitutes a nuisance. Accordingly, in Congreve v. Smith, 18 N. Y. 79, the court of appeals of; New York, speaking by Strong, J., said:
*623 “The general doctrine is that the public are entitled to the street or highway in the condi lion in which they placed it; and whoever, without special authority, materially obstructs it, or renders its use hazardous by doing anything upon, above, or below the surface, is guilty of a nuisance; and, as in all other cases of public nuisance, individuáis sustaining special damage from it, without any want of due care to avoid injury, have a, remedy by action against the author or person continuing the nuisance. No question of negligence can arise, the act being wrongful.”
So, too, in Heeg v. Licht, 80 N. Y. 579, it was adjudged that the keeping of gunpowder or other explosives under circumstances where it would be liable, in case of explosion, to injure the property or persons of those residing in close proximity, would constitute a private nuisance, and render the person keeping such explosives liable in damage in ease of injury therefrom; and it was said that this liability was entirely without regard to the question whether the person so keeping such explosives was chargeable with carelessness or negligence. This doctrine is laid down broadly as the established law in 2 Dill. Mun. Corp. (4th Ed.) § 1032, in the following language:
“No person, not oven the. adjoining owner, whether the fee of the street be in himself or in the public, has the right to do any act which renders the use of the street hazardous or less secure than It was left by the municipal authorities. Whoever does so, whether by excavations made in the sidewalk by the abutter, or by unsafe hatchways left therein, or by opening or leaving open an area way in the pavement, or by undermining the street or sidewalk, or by i>lacing unauthorized obstructions thereon, which make the use of the street unsafe or less secure, is guilty of a nuisance, and is liable to any person who, using due care, sustains any special injury therefrom; and in such cases the person who created or continues the nuisance is thus liable irrespective of the question of negligence on his part.”
See Hayes v. Railroad Co., 111 U. S., at pages 235, 236, 4 Sup. Ct. 369, where this general rule is recognized, and cases cited in which it was declared. See, also, Hetzel v. Railroad Co., 169 U. S. 26, 18 Sup. Ct. 255; Evans v. Fertilizing Co., 160 Pa. St. 209, 28 Atl. 702; Dennis v. Eckhardt, 3 Grant, Cas. 392.
The rule in this class of cases is thus stated by Judge Cooley:
“It is only necessary for the plaintiff in these cases to show how he has been injured by the nuisance, and to distinguish his injury from that suffered by the public at large, and he brings himself within the rules entitling him to redress.” Cooley, Torts (2d Ed.) 736, 737.
See, too, Powell v. Fall, 5 Q. B. Div. 597, Rapier v. Tramway [1893] 2 Ch. 588, Railway Co. v. Truman, 11 App. Cas. 15, in which the common law, as well as the effect of certain statutory enactments, were slated.
It is conceded, and could not be controverted, that the legislature of Ohio conferred upon the city power to grant the right to construct and nse the railroad upon the public landing, with power to annex conditions. The existence of the power to consent to such a use of the streets and highways in the city, and the power to impose valid and binding conditions, were fully recognized in the well-considered case of Louisville Trust Co. v. City of Cincinnati, 47 U. S. App. 36, 22 C. C. A. 534, and 76 Fed. 296; id., 78 Fed. 307. It will admit of question whether, in the absence of constitutional or legislative restriction, municipal corporations, by virtue of the police authority
It is finally insisted that there was error in the court’s holding that the act of plaintiff in error was the proximate cause of the injury sustained. The proximate causal connection between the wrongful operation of the railroad by plaintiff in error and the injury is, however, in the light of authority, too clear to admit of question. McDonald v. Railway Co., 43 U. S. App. 79, 20 C. C. A. 322, and 74 Fed. 104; Railroad Co. v. Reesman, 9 C. C. A. 20, 60 Fed. 374, and 19 U. S. App. 596; Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. 369; Whart. Neg. § 107. Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. 369, strongly supports throughout the conclusions at which
The cases relied on by counsel for plaintiff in error are those in which the business was lawful, and the question was whether the business was operated in a negligent or unlawful manner. In view of the distinction which we have stated, such cases are not applicable. We conclude, therefore, in view of the whole case, that the court rightly instructed the jury that the undisputed facts established a rigid to recover, unless such right was defeated by the contributory negligence of the plaintiff’s intestate. The fact that the instruction apparently proceeded upon the theory that the presence and operation of the train unlawfully upon the public landing constituted also a case of negligence does not affect the correctness of the proposition that the plaintiff was, upon the undisputed facts, entitled to recover, provided plaintiff’s intestate was in the exercise of due care on his part. AVe think the law as thus stated and applied to this case is fully sustained upon authority, and is sound in principle, and we now so hold in a case which squarely presents the question. Judgment affirmed.