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jurisdiction.- A federal court sitting in an Iowa district only extending to the middle of the Mississippi river cannot abate a nuisance on the Illinois side of the river. Mississippi & M. R. Co. v. Ward, 2 Black, 485.
$ 755. Where a private person sues in a federal court to abate a public nuisance, it is not essential to confer jurisdiction that the amount of special damage he proves shall be equal to the sum necessary to give a federal court jurisdiction. The value of the object, i. e., of the abatemeut of the nuisance, sought is the sum to be considered in reference to the jurisdiction. Ibid.
756. A bridge was built over the Mississippi river. Held, that a federal court in Iowa having jurisdiction only to the middle of the stream could not decree the destruction of the three spans of the bridge within its jurisdiction, thereby rendering the other half of the bridge useless, especially as complainant's use of the river was on the Illinois side, and the Iowa part of the bridge was not as to him a nuisance. Ibid.
$ 757. parties.- A. of New York, the B. Co. of Illinois, and the C. Co. of Iowa, united in the construction of a bridge over the Mississippi. D. filed a bill against the C. Company to abate the bridge as a nuisance. Held, that A. and the B. Co. were not necessary parties. Ibid.
$ 758. It is not necessary to make all persons injured by a public nuisance parties to a bill in equity to abate it. Ibid.
§ 759. Miscellaneous.- In cases of nuisance, prescription, whatever the length of time, has no application. Every day's continuance is a new offense, and it is no justification that the party complaining came voluntarily within its reach. Pure air and the comfortable enjoyment of property are as much rights belonging to it as the right of possession and occupancy. If population, where there was none before,-approaches a nuisance, it is the duty of those liable at once to put an end to it. Fertilizing Co. v. Hyde Park, 7 Otto, 668.
$ 760. If the jury on the trial of an indictment or action at law for a nuisance, or a court of chancery on trial of a bill to abate a nuisance, has a reasonable doubt whether the thing in question is in fact a nuisance, then it must acquit or find for the defendant. Mississippi & M. R. Co. v. Ward, 2 Black, 485.
$ 761. The plea of the general issue in actions of trespass or case does not necessarily put the title in issue. Hence a former verdict and judgment in an action on the case for a nuisance is not conclusive evidence of the plaintiff's right to recover in a subsequent action for the continuance of the same nuisance. Richardson v. City of Boston, 19 How., 263,
$ 762. Where a private nuisance is committed in one state, injuring the property of a person in another state, the latter is entitled to a remedy in the courts of the state in which the unlawful acts are committed. Stillman v. White Rock Mfg. Co., 3 Woodb. & M., 539.
$ 763. A public puisance will not be tolerated on the ground that the public will derive some benefits from its continuance. Works v. Junction R. Co., 5 McL., 425.
$ 764. A municipality has no power by ordinance to declare a wharf a nuisance and order its removal as such, when in fact it is not a nuisance. Yates v. Milwaukee, 10 Wall., 505.
XI. STREETS AND HIGHWAYS.
SUMMARY - Liability of municipal corporation, SS 765, 767, 768.- Corporations liable for acts
of agents, $ 766. — Remedy over of municipality, SS 767, 772.- Part of street owned and used by private corporation, $ 768.– Negligence of water company in use of streets, $ 769. Auning knocked down by a teamster, S 770.– What necessary to charge municipality, $ 771.- Liability where work is done by a contractor, SS 772-776. -- Owner concluded by judgment against contractor, $ 774.- Private area, § 777.— License to leave an area open, $ 778. — Excavation, & 779.- Causeway, $ 780.— Bridges, SS 781, 784. — Question for jury,
8782.– Rhode Island statute applies to sidewaiks, $ 783.- Stump in sidewalk, S 785. $ 765. A municipal corporation is liable for an injury occurring by reason of a defect in a highway which it, having notice, neglected to repair. Water Co. v. Ware, SS 786, 787.
$ 766. Corporations are liable for the negligent and unskilful acts of their servants and agents whenever those acts occasion special injury to the person or property of another. Weightman v. The City of Washington, SS 805, 806.
$ 767. A municipal corporation is liable in damages for injuries to persons by nuisances in the streets, but it has a remedy over against the party in fault. City of Chicago v. Robbins, SS 793-795. $ 768. A municipal corporation is liable in damages for the defective condition of its streets
to any one suffering injury thereby, and this liability of the municipality is not affected by the fact that the part of the street on which the injury occurs is in the proprietorship of a private corporation, e. g., a bridge company. Ericsson v. Manchester, SS 800-802.
$ 769. A horse drawing a buggy along the streets in St. Paul became frightened at a steam drill worked by servants of a contractor employed by a water company authorized by the city to make excavations, etc., necessary to carry out its scheme of municipal improvement, The water company had agreed to be responsible to the city for any injuries which might result from the negligence of its servants. Plaintiff was thrown out of the buggy and injured. He sued the water company for damages. Held, that it was liable. Water Co. v. Ware, SS 786, 787.
$ 770. A teamster who reins his team into a gutter so that the rack of his wagon strikes and knocks down a portion of a wooden awning is negligent, and a person injured thereby cannot recover of the town. Merrill v. Portland, SS 788–792.
$771. In order to recover from a municipality for an injury upon a highway six conditions must exist: 1. That the highway was one that the inhabitants of the town were bound to keep in repair. 2. That it was out of repair and defective at the time of the injury. 3. That plaintiff was injured thereby. 4. Reasonable notice of the defect to the town. 5. Ordinary care by plaintiff. 6. Absence of contributory negligence of plaintiff or the concurrent negligence of third persons. Ibid.
$ 772. R. contracted in writing with B. to erect a building on his lot, which included an excavation of the sidewalk next to and adjoining it. The contract contained a stipulation that B. was to be liable for any violation of any city ordinances in obstructing streets and sidewalks, or accidents resulting from the same. R. was in the city, and occasionally at the building, and was there while the excavations were going on, and was spoken to frequently by the superintendent about the dangerous condition of the area. W. one night, while exercising reasonable care in passing along the street, fell into the excavation and was greatly injured. He brought suit against the city and recovered a juigment for $1,500 and costs, which the city was forced to pay. The city thereupon brought an action against B, for indemnity. It was shown in evidence that an ordinance had been violated. Held, that the city was entitled to recover. City of Chicago v. Robbins, SS 793-795.
$ 773, R. was not estopped from showing that he was under no obligation to keep the street in a safe condition, and it was not his fault that the accident happened; yet as he had no express permission from the city to encroach on the street he was engaged in an unlawful work, and the digging of the area was in itself a nuisance. Ibid.
$ 774. R. was concluded by a judgment recovered against a corporation for his act of negligence, because he knew that the suit was pending and could have defended it. An express notice to him to defend the suit was not necessary in order to charge his liability. Ibid.
$ 776. The owner of a lot where a building nuisance is permitted is liable, although the fault was in his contractor. Ibid.
$ 776. A person contracting for work is liable for the acts of his contractor in obstructing the street while building an area. Robbins v. Chicago, SS 796-799.
$ 777. A private area is not a public work although the street grade was raised in forming it. Ibid.
$ 778. License to leave an area open and unguarded in a street cannot be inferred from the failure of city authorities to object to its construction. Ibid.
$ 779. An allegation in a declaration that the place for an area was excavated is sufficiently sustained, although the proof show that in fact there was not an excavation of the area, but that the street grade was raised so as to create a hole where the area was. Ibid. $ 780. A causeway is a highway or public street. Ericsson v. Manchester, SS 800-802.
$ 781. The plaintiff brought suit against the defendant city to recover damages for injuries received by reason of a defective bridge in one of the streets of the city. The city was vested by its charter and by general statute with the title, and full control and jurisdiction over all streets within its corporate limits. Held, that the city was liable for any special damage arising out of neglect in keeping the streets in proper condition. Nebraska City v. Campbell, $ 803.
$ 782. Action against a municipal corporation to recover damages for an injury occasioned by a fall over an obstruction in a sidewalk. Held, that it was a question for the jury whether, having reference to its location and uses, the sidewalk was reasonably safe and convenient. City of Providence v. Clapp, § 804.
$ 783. The statute of Rhode Island requiring highways to be kept in repair applies to sidewalks in cities, and to obstructions from falls of snow. Ibid.
$ 781. Plaintiff was passing in an omnibus going over a bridge. The bridge extended over Rock creek in the city of Washington, and in consequence of its unsafe condition gave way, whereby the plaintiff was thrown into the creek and received serious injuries. It was shown
in evidence that the charter of the city provided that its bridges should be kept in repair. This duty was imposed in consideration of privileges granted, and it was also shown that the means of performing this duty were within the control of the corporation. Held, that the plaintiff was entitled to recover. Weightman v. The City of Washington, SS 805, 806.
$ 785. In 1847 New York cut down a tree in its city hall park, leaving a stump six or eight inches high. This portion of the park was at the same time transformed into a portion of the sidewalk of the street. The stump remained until an accident was caused by it to plaintiff in 1857, and he sued the city authorities for negligence in leaving it there, and injuring him. Held, that he need not aver express notice to the city; that it was liable for negligence in not removing the stump; that it could not in defense set up that the portion of street wherein the stump was left was not a street, owing to its never having been regularly condemned to public use, nor that it was pledged to the city's creditors; and that the burden was upon the city to disprove negligence. Mayor v. Sheffield, SS 807-809.
[NOTES. - See SS 810-834.]
WATER COMPANY v. WARE.
(16 Wallace, 566–577. 1872.) ERROR to U. S. Circuit Court, District of Minnesota. - Opinion by Mr. JUSTICE CLIFFORD.
STATEMENT OF Facts.— Injuries of a physical nature were received by the plaintiff through an obstruction in one of the public streets of the city of St. Paul, occasioned, as he alleges, by an employee of the corporation defendants, for whose acts they are responsible, and he instituted the present suit to recover compensation for those injuries. Service was made, and the defendants appeared, and the parties went to trial, and the verdict and judgment were for the plaintiff; and the defendants excepted and sued out this writ of error.
Evidence was introduced by the plaintiff tending to show that where the accident occurred was a public street of the city; that the defendants entered into an engagement with the authorities of the city to make the necessary excavations in the streets, and to lay therein suitable pipes and complete the work as stipulated in a certain contract, to introduce a supply of water into the city for the use of the inhabitants, and that their employee or contractor was at work at the time making the excavations and laying the pipes; that the excavations in the street where the plaintiff was injured extended from the intersection of Eighth street to the intersection of Ninth street, and that the excavation, with the embankments made on the sides of the same by throwing out the earth, occupied the greater part of the width of the street, leaving on the east side little more than a passage-way of sufficient width for a onehorse carriage; that in making the excavation the workmen found it necessary to drill and blast, employing the steam drill for drilling, and blasting, as usual, with gunpowder; that the engine which propelled the drill was three feet in diameter and was elevated six or seven feet above the surface of the ground, and at the time of the accident to the plaintiff it stood near the intersection of Eighth street with the street in which the plaintiff was passing; that the plaintiff, with one other person, was riding in a carriage drawn by one horse, and having turned from Ninth street into the street where the accident occurred, the plaintiff, with the other person in the carriage, was driving along down the narrow passage-way, on the east side of the street, when the persons in charge of the engine suddenly, and without giving any notice or warning of their intention, set the engine and drill in operation, causing a loud noise which frightened the plaintiff's horse and caused him to shy and turn upon the sidewalk, overturning the carriage and injuring the plaintiff.
Due care, it is alleged, was used by the plaintiff, as when he left the intersecting street and passed into the street where the accident occurred the engine and drill were not in operation, nor was there any barricade or signal of any kind to indicate that there was any danger, or that any special precaution was necessary except what was suggested by the embankment and the narrowness of the street; and the evidence also tended to prove that neither the engine nor the drill was seen by the plaintiff or by the person in the carriage with him until the horse of the plaintiff was within ten feet of the place where the engine and drill were situated, and that it was at that moment that they were put in operation by those in charge of the work, and that one of the workmen ran into the street and threw up his arms as if to stop the horse, which had the effect to make him still more unmanageable.
Having introduced evidence tending to prove the foregoing facts the plaintiff rested, and the defendants moved the court to direct the jury to return a dict in their favor upon the ground that the negligence proved, if any, as the cause of the injury to the plaintiff was the negligence of the contractor in charge of the work, or his servants or employees, and not of the defendants, or their servants or employees, which motion the court then and there denied, and remarked that "the action is brought upon the principle, which is well settled in the federal courts, that where a person or corporation is engaged in a work in the ordinary doing of which a nuisance necessarily occurs, the party is liable for any injury that may result to third parties from carelessness or negligence, even though the work may be done by a contractor;” and it makes no difference even if the party, in a case like the present, might sustain an action against the municipal corporation, as it is his right to seek his remedy against the party who created the nuisance or his immediate employees; to which ruling and decision the defendants then and there excepted.
Testimony was then introduced by the defendants tending to show that the injury mentioned in the declaration was not caused by any neglect or misconduct of the persons in charge of the work, but wholly by the reckless and negligent driving of the plaintiff, and the person with him in the carriage.
Prayers for instruction to the jury were presented by the defendants in substance and effect as follows: (1) That the court instruct the jury that upon the whole evidence they must find their verdict for the defendants. (2) That if the injury to the plaintiff was caused solely by the negligence or misconduct of the employees of the contractor in doing the work, then the defendants are not liable.
Both of those requests were refused, and the rulings of the court in that behalf, together with the refusal of the court, at the close of the plaintiff's case, to direct a verdict for the defendants, present the principal questions in the case for the decision of the court. Other prayers for instruction, involving the same principles, were also presented by the defendants, which were also refused, and the rulings are embraced in the exceptions.
$786. Duties of cities and towns as to highways.
Cities and towns are usually required by statute to keep their streets and highways safe and convenient for travelers, and if they neglect so to do, in a case where that duty is imposed by law, and suffer the same to get out of repair and defective, and any person as a traveler receives injury through such defect, either to his person or property, the delinquent corporation is responsible in damages to the injured party. Such a party, however, cannot maintain an action against the corporation grourded solely on the defect and want
of repair in the highway, but he must also allege and prove that the corporation had notice of the defect or want of repair and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the bighway, as the duty to repair in such cases is a duty owed to the public, and consequently if one person might sue for his proportion of the damages for the non-performance of the duty, then every other member of the community would have the same right of action, which would be ruinous to the corporation, and for that reason it was held at common law that no action founded merely on the neglect to repair would lie. Weightman v. Washington, 1 Black, 52 (SS 805-6, infra).
Nor will an action lie in such a case at the present time; but it is settled law, by the highest authority of the country from which the common law is derived, that where it appears that the corporation is under a legal obligation to repair the way in question, and that such obligation is a matter of general and public concern, and also that the place in question is out of repair and that the plaintiff has sustained some peculiar damage in his person or property by means of such defect or want of repair, that the corporation, if the means of performing the duty to make the repairs are within their control, is liable to compensate the injured party for the injury which he suffered from their neglect. Henly v. The Mayor, etc., of Lyme, 5 Bing., 91; The Mayor v. Henly, 3 Barn. & Ad., 77; Mayor, etc., of Lyme-Regis v. Henly, 2 Cl. & Fin., 331. Since the decision in Mayor of Lyme-Regs v. Henly, the case last referred to, many decisions to the same effect bave been made by the state courts in this country approving that rule and applying it in all similar controversies. Hutson v. New York, 5 Sand., 304; Erie v. Schwingle, 22 Penn. St., 384; Storrs v. Utica, 17 N. Y., 104; Conrad v. Trustees of Ithaca, 16 id., 159; Browning v. Springfield, 17 III., 145; Lloyd v. Mayor, 1 Seld., 369.
$ 787. Liability of employers of contractors for the latter's torts.
Grant all that and still the defendants deny that the rule established by those authorities furnishes any support to the rulings of the circuit court, as they, the defendants, were mere contractors to make the excavations and lay the pipes, and they insist that the persons responsible to the plaintiff, if any, are the persons whom they employed to do the work and who were in charge of it at the time the plaintiff was injured, and they deny that they, in any view of the case, can be held answerable for the neglect and carelessness of those who had contracted with them to make the excavations and lay the pipes, and who had charge of the engine and steam drill, the operation of which frightened the horse of the plaintiff.
Concede that proposition and it would follow that the rulings in question are incorrect; but the evidence exhibited in the record shows that the defendants agreed with the municipal authorities to protect all persons against damages by reason of the excavations made by them preparatory to laying the pipes, and to keep the work properly guarded by day and night, and to be responsible for all damages which “inay occur by reason of neglect of their employees in the premises,” and that the streets should not be unnecessarily obstructed or incumbered in doing the work. Such an agreement would not acquit the municipality of an obligation, otherwise attaching, to keep the streets safe and convenient for travelers; but it may well be held that a party injured through a defect or want of repair in such a street, occasioned by the neglect or carelessness of such a contractor in doing the work, or of those for whose acts he is responsible, may, at his election, sue the contractor for redress VOL. XXVIII -- 24