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was such evidence of negligence as required of the authorities explanations in order to escape liability.

Another objection to this charge is that it ignores the necessity of notice to the authorities of the existence of the obstruction.

It is certainly true, as a general proposition, that before the corporate authorities can be held liable in this class of cases, it must be shown that they knew of the existence of the cause of injury, or had been notified of it, or such a state of circumstances must be shown that notice would be implied. And it is true that this charge makes no reference to notice whatever. But when we look into the facts of this case, as shown by the bill of exceptions, we discover a very plain reason why this was omitted. The question of notice, as a fact, could not be disputed, and therefore did not arise as a matter on which the jury required instructions.

$ 809. Express notice not essential.

The city authorities, in converting the part of the park already mentioned into a street, bad cut down a tree, and left the stump standing from six to eight inches above the surface, and from fourteen to eighteen inches inside the curbstone, on the sidewalk. This was done in 1847; and this stump, thus left by the city authorities who had cut down the tree, remained in that condition until the time of the accident to plaintiff, in 1857.

These facts were uncontradicted, and stronger proof of notice could not be given. It closed the question, and the omission in the judge's charge of any reference to that subject was justified by the testimony. It would have been superfluous.

Judgment affirmed.

S 810. Municipal liability in general.- A municipal corporation holding a voluntary charter, as a city or village, is responsible for its mere negligence in the care and management of its streets. In this respect there is a distinction between the liability of such a corporation and that of a quasi-corporation, like a county, town or district. Whether or not this distinction is founded on sound principles it is too well settled to be disturbed. Barnes v. District of Columbia, 1 Otto, 540.

$ 811, change from town to village.- Action against a village corporation to recover damages for injuries sustained by plaintiff stepping into a hole in the plank covering of a sewer which had been used for the purposes of a sidewalk. The corporation had formerly been that of a town, but it had recently assumed the organization of a village. Held, that the fact tbat the corporation had changed its organic law but a few months prior to the accident, and bad not yet run the term of its municipal year when it could make an appropriation under the law under which it was then existing, did not relieve it from liability to keep the street in repair. Evanston v. Gunn, 9 Otto, 660.

$ 812. Grading.– A municipal corporation is authorized to grade and change the grade of streets from time to time, when it is necessary to do so, without protecting the earth or em. bankments of the adjoining proprietors. Thus, where, in constructing a street fifty feet in width, the city authorities cut the land at the extreme limits of the fifty feet perpendicularly, the inevitable effect of which method of construction is to cause the adjoining land to cave into the street, and the land does so cave, there is no liability on the part of the inunicipal corporation, the work bcing for the public benefit and convenience. Cheever v. Shedd, 13 Blatch., 258.

$ 813. While a street is being graded by a city, it is not negligence, as a matter of law, for the city to permit on such street a descent over an “apron” or otherwise, from a higher to a lower elevation, providing such means of descent be properly constructed and maintained. Clark v. City of Chicago,* 4 Biss., 486.

S 814. Where a municipal corporation intrusted with the duty of opening highways and keeping them in repair performs this duty with reasonable care, it is not liable to lot owners for damages done by changing the grade of streets. Smith v. Washington, 20 How., 148.

$ 815. Defective bridges.— A municipality whose duty it is to keep roadways and bridges in repair is liable for an injury to a person caused by negligence to keep a bridge in good order. Weightman v. Washington, 1 Black, 48 (SS 803–6).

$ $16. The city of Washington being chargeable with the duty to keep a certain bridge in repair is liable to one injured by falling through the bridge into the creek below it. lbid.

$ 817. Defective drain.— A drain was left uncovered in the city of Baltimore. The plaintiff was crossing a street at night through which the drain run, and fell into it. He sued the mayor and city council for damages. Held, that the city authorities were the exclusive judges of the time, place and manner in which the streets should be opened, graded, paved and made highways. That the omission of the city to grade and improve Canal street at the point where the accident happened, and to place a rail on the side or to cover it over, so as to make it a thoroughfare for public travel, was not of itself such negligence as would support the action. Hughes v. Baltimore,* Taney, 243.

$ 818. Excavations in — Municipal liability.- An allegation of injury caused by a dangerous excavation in the public street, negligently and carelessly made and allowed so to remain by the city, establishes a prima facie liability on the part of the defendant without setting out that the city had notice of the defect. Serrot v. Omaha City, 1 Dill., 312.

S 819. The plaintiff, while walking along a passage-way in the city of Chicago, known as Couch alley, stepped into an excavation made at the side of a building for the purpose of admitting light into the basement, and was seriously injured. The ailey was subject to the control of the city; the city had exclusive care over it, and it was used for the passage of vehicles and persons. In an action against the city for damages it was held that, although the same obligation did not rest on the city as to Couch Place as if it had been a more public street, still, it was the duty of the city to have these holes properly guarded, and the city was guilty of negligence in permitting them to be left open. Lombard v. City of Chicago, * 4 Biss., 460.

$ 820. private liability.- A man who excavates in front of his house in order to make a vault is liable if he leaves it uncovered and some one falls into it. Beardsley v. Swann,* 4 McL., 333.

$ 821. Excavations near highway – Municipal liability.- By the side of the road in a village street was an open cellar, over which no building bad existed for about eight years, and the corporation had never erected a fence, railing or guard of any kind against the excavation. The surface of the street itself was level and in every respect in good condition, having been repaired from time to time. Held, that this was not such a state of good repair as the statute of Maine prescribed, providing that towns in that state should keep their highways in such repair that “they shall be safe and convenient for travelers with horses, teams and carriages.” Nichols v. Inhabitants of Brunswick, 3 Cliff., 81.

S $22. private liability.- Plaintiff while going along a street inadvertently got a little outside of it and fell into an unguarded excavation on defendant's premises. Held, that although plaintiff was technically a trespasser, yet this fact did not excuse defendant's negligence in not guarding the excavation. A person opening near a public highway a deep and dangerous excavation should put a guard around it, if the excavation is so near the street that there is danger of passers-by falling into it. Sanders v. Reister,* i Dak., 151.

$ 823. Snow and ice on streets and sidewalks.— Under the statutes of Rhode Island it is the duty of cities and towns to exercise reasonable diligence to clear their sidewalks of snow, so as to make them safe for pedestrians, and it is for the jury to determine whether it is sufficient diligence merely to leave the snow to be trodden down by the people. City of Providence v. Clapp, 17 How., 161 (S 804).

$ 824. A city is not bound to keep its streets and sidewalks free from ice and snow, although it should remove such accumulations of ice and Uw as are especially dangerous, Clark v. City of Chicago,* 4 Biss., 436.

$ $25. Injury caused by negligence of contractor - Liability of principal.— The St. Paul Water Company was authorized to build an aqueduct in St. Paul to supply the city with water. It employed a contractor to do portions of the work, and while he was engaged in blasting and drilling rock in one of the streets, plaintiff, riding his buggy, was tipped over and injured. He brought suit against the water company. Held, that although the city would be liable the water company could also be sued; that the water company was liable although it did the work by a contractor; but that the jury must be satisfied not only that the contractor was negligent, but that the plaintitf was free from negligence contributing to the accident; that the defendant's negligence must have been the proximate cause of the injury, and that if it was in fact caused by plaintiff's own act in turning his horse too sharply into a side street, he could not recover. Ware v. St. Paul Water Co., * 2 Abb., 261; 1 Dill., 466.

S 826. Defective trench - Liability of gas company.- A gas company filled up a trench in a street so negligently that, after a rain, it sunk in so that a carriage was driven into it to the injury of the plaintitf, who sued the gas company for damages. Held, that it was liable, notwithstanding the city authorities bad approved and accepted the gas company's work in dig. ging and filling the trench. Dillon v. Washington Gas Co., * 1 MacArth., 626.

$ 827. Where a gas company digs a trench in a street it is its duty to fill it up so that the strert will be in as good condition as before the excavation was made, and to prevent any injury which might result from sink-holes being formed by storms and rainfalls. Ibid.

$ 828. Defective streets in District of Columbia.— The act of congress providing for the government of the District of Columbia gives the municipality no control over the public streets, but gives such control to a board of public works, created, appointed and paid by the general government. Hence the District cannot be held liable for an injury caused by a defect in one of the streets therein, whether caused by the negligence of the board or otherwise. Barnes v. District of Columbia, * 1 MacArth., 322.

$ 829. Notice of defect — Allegation of.- Plaintiff was injured by falling into an excavation twenty feet in length and twelve feet wide, which had negligently been allowed to remain open and unguarded in one of the principal streets of Omaha. He brought action against the city for damages. It was urged in cefense that the city was not liable in the absence in the petition of an averment that it had notice of the defect which caused the injury. Held, that the petition was sufficient as against the objection urged on demurrer. That, considering the nature of the street, the size and character of the excavation, and the express allegation of carelessness, the petition alleged facts showing a prima facie liability on the part of the defendant. Serrot v. Omaha City,* i Dill., 313.

$ 830. Under an act of Rhode Island (Dig., 299) requiring every person who shall have any money due to him from any town, or any demand against any town for any matter, cause or thing whatsoever, to present "a particular account of his debt or demand, and how contrac ed,held, that notice to the inhabitants was necessary before an action on the case could be brought against the treasurer for damages suffered by reason of a defect in a highway which the town was bound to keep in repair. Holland v. Town Treasurer of Cranston, 1 Curt., 497.

$ 831. road too narrow.- Action under the statute of Rhode Island to recover $6,000 damages for injuries received by plaintiff through the alleged negligence of the defendant, the city of Richmond, in not providing a suitable highway. At the time of the accident plaintiff was driving along the highway in a one-horse wagon when he met an ox team at a point where the road, on account of its rutty and dangerous condition, was too narrow to allow the passage of two teams. Both drivers accordingly led the horse over the rocky and dangerous portion of the road, and the ox driver thinking all danger passed returned to his cattle, when he heard a shriek, and on looking saw plaintiff under his wagon with his leg broken and the horse tangled by the harness in the bushes. Held, as to notice, that the notice given the town of the injury, and demanding general indemnity therefor, was sufficient to sustain an action ex delicto, it not being necessary to specify the amount demanded or other particulars; that the use of the road for twenty years would make it a public highway; that the remedy under the statute must be strictly pursued; that the whole width of the public high ways need not be made passable for two teams, provided stopping or turning-out places existed at suitable and convenient points; that plaintiff must show the exercise of due care on his part, and that if the cause of the accident was unknown and disconnected with the defendant then plaintiff could not recover. Two trials resulted in a disagreement of the jury first and then a verdict for defendant. Hull v. Richmond, * 2 Woodb. & M., 337.

$ 832. Private way — Duty and liability of owner.- Petitioner was injured by falling into an unguarded excavation in a private alley through which he was lawfully passing in the night. Held, that the owner of a private way is not bound to keep it in repair, and owes, in respect to it, no duty to the public. Nugent v. Wann,* 1 McC., 438.

$ $33. A person going through a private alley-way was injured by falling into an open excavation. In an action against the proprietor of the way for damages on the ground of negligence, held, if a private way be customarily used by the public, the proprietor thereof is liable for placing therein anything to endanger the safety of persons passing over it. But a knowledge of such public usage must be shown to render him liable. Ibid.

S 834. A peace-officer, in pursuit of a criminal in the night, while passing through an alley fell into an unguarded excavation and was injured. Suit was brought against the proprietor of the alley for damages. Held, that a peace or police officer has a right to go through a private way at any hour of the night in the discharge of his duty. Ibid.

407

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XII. DAMAGES.

[See CONTRACTS; DAMAGES.)

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SUMMARY - Exemplary damages, $ 835.— Wrongful expulsion from car, SS 836, 837.— Per

manent injury, $ 838.— Elements of compensation, SS 838, 839.- Excessive damages;

new trial, $ 840.— Trespass on timber lands of United States, & 841. $ 835. No exemplary damages can be given for an injury caused merely by a negligent railway collision without evidence of malice or evil intent, not even though the negligence might be called “gross.” Milwaukee & St. Paul R. Co. v. Arms, Sš 842, 843.

$ 836. Damages for an unlawful expulsion from the cars may properly include coinpensation for loss of time, price of a second ticket, expenses of stopping over, and also for the indignity of an unlawful expulsion. Quigley v. Cent. Pac. R. Co., S$ 844-846.

$ 837. Where, by reason of an unlawful expulsion from the cars, plaintiff sustained actual damages of about $50, held, that $100 would be sufficient compensation for the indigvity of his expulsion, and a verdict for $1,052 was set aside as excessive. Ibid.

$ 838. For personal injuries from a single act, one action only can be brought, and there can be but one assessment of damages. Where the jury are satisfied that the injury is a permauent one, they are to take into consideration the future consequences to the plaintiff, so far as respects loss of time, bodily pain and suffering, and inability to labor. Wightman v. City of Providence, SS 817–349.

$ 839. The law goes no further than to point out the grounds of complaint which may be taken into account as elements of computation, and the evidence that may be introduced to support the claim, and when that is done the estimation of the amount is necessarily left to the jury. Ibid.

$ 810. The plaintiff was walking upon the sidewalk, and, while passing over a part of it that was covered with ice, slipped and fell, and was injured. He brought suit, and the jury awarded him damages for the injuries received. On motion for a new trial, on the ground that the damages assessed by the jury were excessive, it was held that courts of justice will not grant a new trial except when the verdict is so large as to satisfy the court that it was perverse or the result of gross error, or that the jury have acted under the influence of undue motives or misconceptions. Ibid.

$ 841. Where timber is cut from lands of the United States innocently and without an intention to trespass, the measure of damage is the value of the timber where cut, without regard to the labor put upon it by the person who cut it. But where the trespass was intentional he must pay the full value of the property, ough enbanced by the labor of the trespasser. These rules apply even against an innocent purchaser. Wooden Ware Co. v. United States, SS 850, 851.

[NOTES. — See SS 852–903.]

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MILWAUKEE & ST. PAUL RAILWAY COMPANY V. ARMS.

(1 Otto, 489-495. 1875.)

ERROR to U. S. Circuit Court, District of Iowa.

STATEMENT OF Facts.— Action for damages for injuries sustained in a collision of two trains of cars. The court instructed the jury that if they found there was gross negligence they might give exemplary damages.

Opinion by MR. JUSTICE Davis.

The court doubtless assumed, in its instructions to the jury, that the mere collision of two railroad trains is, ipso facto, evidence of gross negligence on the part of the employees of the company, justifying the assessment of exemplary damages; for a collision could not well occur under less aggravated circumstances, or cause slighter injury. Neither train was thrown from the track, and the effect of the collision was only to demolish the fronts of the two locomotives. It did not even produce the “shock” which usually results from a serious collision. The train on which Mrs. Arms was riding was moving at a very moderate rate of speed; and the other train must have been nearly, if not quite, stationary. There was nothing, therefore, save the fact that a collision happened, upon which to charge negligence upon the company. This was enough to entitle Mrs. Arms to full compensatory damages; but the inquiry is whether the jury had a right to go farther and give exemplary damages.

$ 842. Damages usually compensatory, but may be exemplary.

It is undoubtedly true that the allowance of anything more than an adequate pecuniary indemnity for a wrong suffered is a great departure from the principle on which damages in civil suits are awarded. But although, as a general rule, the plaintiff recovers merely such indemnity, yet the doctrine is too well settled now to be shaken, that exemplary damages may in certain cases be assessed. As the question of intention is always material in an action of tort, and as the circumstances which characterize the transaction are, therefore, proper to be weighed by the jury in fixing the compensation of the injured party, it may well be considered whether the doctrine of exemplary damages cannot be reconciled with the idea that compensation alone is the true measure of redress.

But jurists have chosen to place this doctrine on the ground, not that the sufferer is to be recompensed, but that the offender is to be punished; and, although some text-writers and courts have questioned its soundness, it has been accepted as the general rule in England and in most of the states of this country. 1 Redf. on Railw., 576; Sedg. on Measure of Dam., 4th ed., ch. 18 and note, where the cases are collected and reviewed. It has also received the sanction of this court. Discussed and recognized in Day v. Woodworth, 13 How., 371, it was more accurately stated in The Philadelphia, Wilmington & Baltimore R. Co. v. Quigley, 21 How., 213 ($$ 495–99, supra). One of the errors assigned was that the circuit court did not place any limit on the power of the jury to give exemplary damages, if in their opinion they were called for. Mr. Justice Campbell, who delivered the opinion of the court, said: “In Day v. Woodworth this court recognized the power of the jury in certain actions of tort to assess against the tort-feasor punitive or exemplary damages. Whenever the injury complained of has been inflicted maliciously or wantonly and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act; the word implies that the wrong complained of was conceived in the spirit of mischief, or criminal indifference to civil obligations."

As nothing of this kind, under the evidence, could be imputed to the defendants the judgment was reversed. Although this rule was announced in an action for libel, it is equally applicable to suits for personal injuries received through the negligence of others. Redress commensurate to such injuries should be afforded. In ascertaining its extent the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go farther, unless it was done wilfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages.

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