Willey v. Allegheny City, 118 Pa. 490

118 Pa. 490 | Pa. | 1888

Opinion,

Me. Justice Williams:

The important question in this case is that raised by the third, fourth, fifth and sixth assignments of error. The action was based upon the allegation that the city had faded to provide its wharf with fastenings sufficient in number and strength to secure boats and rafts from being swept away by floods.

The second point submitted by the plaintiff to the court below asked an instruction to the jury that inasmuch as the city of Allegheny was in “ possession of the wharf at which plaintiff’s rafts were lost, and receiving tolls or wharfage for its use, it was held to the utmost care of said wharf, and it was a violation of defendant’s duty to permit said wharf to get out of repair, or neglect to provide means of fastening for the moorings of rafts and other craft at said wharf; and if the jury believe from the evidence that plaintiff’s loss on or about June 9,1881, was occasioned in consequence of said neglect of duty on part of the defendant city then their verdict should be for the plaintiff.” The court affirmed this point, adding this important qualification: “ That ‘ utmost care ’ must be understood to mean only reasonable and proper care in view of the safe mooring of floats and rafts under ordinary circumstances and floods which could and should have been anticipated by the exercise of reasonable care and foresight.” This answer taken as a whole affirms the proposition that the city was bound to the exercise of the utmost care, and then defines the word “ utmost ” as meaning reasonable, and the measure of care required as “ only reasonable and proper care.....under ordinary circumstances.” It left the jury without any clear and adequate declaration of the rule they were expected to apply. It becomes necessary, therefore, to examine briefly into the relation of the parties to each other and the duty resting on the city as the owner of the wharf.

Whoever may be the owner of a public wharf, whether a private person, a corporation, or a municipality, the duties of the owner and the rights of the public are the same. The owner has the exclusive control over the property and its management. The public are invited to use it upon the payment of the established rates of toll or wharfage, and must trust to the security and sufficiency of the appliances afforded them. The wharf of the defendant is upon the bank of the Allegheny river, which is subject to great changes in the volume of its waters and the force of the current, by reason of floods. The navigation is almost entirely descending and is by rafts and heavily loaded boats that come down the river upon the high water. The advantages and the perils of floods enter into the calculations of both the navigator of the stream and the owner of the wharf upon its banks. The craft comes to the market which the city of Allegheny affords, upon the floods, and must depend upon the wharf for security against the swollen current while seeking a purchaser. It is the duty of the owner of the wharf to make suitable preparations for the safety of those who moor their rafts and boats along its side. To undertake a duty for which one is incompetent or is not adequately provided is in itself negligence.

When the public are invited to the wharf of the defendant and charged for the security offered them, they have a right to expect and to depend upon the provision by the city of such appliances for securing and holding their boats and rafts against the current as are sufficient for that purpose. The wharfinger who receives and stores the goods of his customers in his warehouse is liable only for ordinary care, for the goods in store are exposed only to the ordinary perils of storage on the land; but rafts and boats moored at the defendant’s wharf are exposed to the dangers of the stream. The violence of the winds and the floods are among these dangers. The raftman and the boatman seek security against these at the wharf. The perils are not ordinary, but they are great; and ordinary care, or “reasonable care under ordinary circumstances” is not enough. It is not proportioned to the dangers of the navigation or to the extent of the calamity in case of failure in the undertaking to hold securely. In the case of the City of Pittsburgh v. Grier, 22 Pa. 54, a similar question was raised and this court said: “ The interests of commerce imperatively require that the place to which vessels are invited to come should be in a safe condition; ” but no more exact definition of the measure of care required was attempted. In the recent case of the City of Allegheny v. Campbell, 107 Pa. 530, the court below affirmed a point asking an instruction to the jury that “ the city was bound to the utmost care ” in maintaining its wharf in a safe condition for public use. This instruction was assigned for error as a too rigorous statement of the rule, but it was affirmed by this court. Justice Paxson said, in delivering the opinion of the court: “ The plaintiffs certainly have a right to look to the city for redress; for it was upon the city the duty was devolved of keeping the wharf in a safe condition; ” but the expression “ utmost care ” was not commented on.

In the case of the Mersey Docks & Harbor Trustees v. Gibbs, decided in the House of Lords in 1865, the plaintiff’s ship was injured.on a bank of mud at the mouth of the docks. The trustees denied their liability, as the obstruction was not known to them, and asserted that they were liable only for the failure to exercise ordinary care. But it was held the company was liable for the injury caused by the accumulation of mud at the docks whether they knew of the accumulation or not, if, by their servants, they had the means of knowing, and were negligently ignorant of it. An analogous principle is asserted in the cases in which the duty of a ship or dock company, to provide safe access to their ships for passengers, has come under examination; and such companies have been held to very strict liability for any defect or insufficiency in the appliances used for this purpose: Wh. Neg., par. 828; John v. Bacon, L. R. 5 C. P. 437; Wendell v. Baxter, 12 Gray, 494. The docks and gangways are held to be highways so far as to give to the public an unobstructed use of them as a means of access to the ship ; but as the danger attending their use is much greater than that attending the use of the public highways, so the measure of care required is correspondingly greater. In the case of railroad companies the rule has been held with great steadiness that the duty of the company is to exercise the utmost degree of care consistent with the continuance of the business. In our own leading case upon the subject, Laing v. Colder, 8 Pa. 479, Justice Bell, who delivered the opinion of the court, uses this language: “But, though, in legal contemplation, they (the railroad companies) do not warrant the absolute safety of passengers, they are yet bound to the utmost care. The slightest neglect against which human prudence and foresight may guard, and by which hurt or loss is occasioned, will render them liable to answer in damages.”

. The foundation on which the rule in all these cases rests, is the character of the danger to which the property or person is exposed, and the absolute dependence of the public upon the care and fidelity of those who serve it.

The same words “ utmost care” have been used to define the degree of care due from the owner of a public wharf to the navigator of boats and rafts; from a ship company to the public passing over its gangways; from a railroad company to passengers being transported in its cars. In each case, however, they are to be understood in connection with the subject to which they are applied. In the case of the Penn. R. Co. v. Fries, 87 Pa. 234, negligence is defined as the absence of care according to the circumstances. Drawn out at length, this is a statement that the nature and extent of the peril to be guarded against and the extent of the calamity to be suffered in case of failure, are always to be considered in determining the degree of care to be exercised in any given case. Whatever a diligent man would deem necessary under any given circumstances for the preservation of his own property, must be done by the individual, or corporation, or city, that undertakes, for hire, the preservation of property for the public. The “ utmost care” therefore, which was due from the city of Allegheny, required the use of all the appliances and precautions that a diligent man owning the rafts and owning the wharf would deem it proper to employ in the preservation of his own property from the perils of the river. This definition or statement of the care due from the defendant city is in harmony with the cases cited above, and is-that by which the question of its negligence in the management of its wharf is to be determined.

Judgment reversed, and venire facias de novo awarded.