E!18
94 FEDERAL REPORTER.
for the pUtp()se of buildipg alld repairing levees in Chicot Arkansas; that the line oflevee to be ,built on the plaintiffs' premises described in theoornpiaint in the Year 1887; tliat the damages done to said premises by i'eason thereof were duly assessed in accordance with law in the year aforesaid at the sum of one dollar; that, in fact" the plaintiffs' lands were enhanced in value by the levee built thereon in a sum greater than any damage . done by the bUilding thereof." .
the plaintiffs from the action .of the board complained of, which was rejected,-upon what ground the record does not disclose; but a 8utllciEimt ground to support the.ruling of the lower is found in the fact that the board set up no such claim or defense in its answer. ,Aside from the genera} denials, of the answer, all that is found on the subject ot damages is contained in paragraph 2 of the substituted and amendedans",er,. which reads as foll9wS; "(2) Said board.alleges .that·it was. created under the act of March 20, 1883,
Obviously the benefits here attempted. to be set up are the benefits which the plaintiffs' lands received in common with the other lands within the levee district by the original construction of the levee; and, moreover, if the averment could be considered to relate to special benefits, they are special benefits resulting from the original construction oLthe levee, which were considered and disposed of in the condemnation proceedings taken in 1887, and are quite fOreign to tlruiscase. Nothing is said about any special benefits accruing to the plaintiffs or their land by relli30n of the acts .done by the .boaI'd for which this suit is brought.. If the defendant relied upon any· such defense, it; should have set it up in its answer. , One of ·the pleas of the statute of.limitations has been abanthe;;statute of three, years, there beiugconfiicting doned, and, evidence as to when the cause of action arose..the court below properlyaubmitted tht.'! .if'lsuetothe jury, and its fin9ing is conclusive. 'It would serve nO'l1aeful purpose to examine in detail all the requests forittstructiotts, and the numerous assignments of error arising upon exceptions. The VHflII.qJ.lestions in the case ,hav,8 been,considered and decided. Acare(ul considerasatisfies Uf'I that there was Uosubfijtantial tion of the whole error committed in the trial of the case, and that the judgment is Ii,.' right, and should be. affirmed. ; . I ' ,J / ; "
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PITTSBURG, C. & ST; L.R;Y, CO.v. HOOp.." :.; "
!,'"
(O'ircuitCourt hf' A:.ppeals, :Sixth qttcUit.May
No.\3$q.
"
15;1899.,
:t;' HIGH'WAYS""--'USE I
In the :absence of or tll,rougl1 t!:le au.thorizeilactionofll the, constructioJ;l. lind use by a railroad ,.comp\lny of. its rQa[J longitudinally on, a public highway is a public nuisance. . ., ." , ' The unauthorized occupation and use,'of highways by a railway company makes, such company a trespasseJ;,and for: such damages as
BY RAlLWAY COMPANIES-NuISANCES.
a
SAMEi-UNAU'rHOltIZEb USE-LIABILITY FOR' INJURIES;
PITTSBURG, C. &. ST. L.
RY.
CO. V. HOOD.
pr9xiiljlately result to persons or property in the absepce of contributory negligence. 3. USE OF S'I'REETSBY RAILROADS.
Where authorit3', under power delegated by the legislature to a, city, is given to construct a railroad upon city streets, reasonable conditions, essential for the protection of the public :interest, may be imposed, which, if accepted by the company, are binding on the parties. An ordinance, under power delegated by the legislature, granting a rah. way company a right to construct a railroad upon a public landing under condition prohibiting. use of the track during specified hours, combines contractual as well as police provisions, the ,atterbelng in the interest of public safety. That a police provision pursuant to clear legislative authority is found in an' ordinance which contains contract provisions does not affect the essential character of the power exercised,as within the corporate limits the police provision has the force of a law enacted by the legislature.
4.
5. SAME-POJ,ICE POWEH.
6.
RAII,ROADS-PEHSONAL INJURIES-PROXIMATE CAUSE:
Plaintiffs' intestate, a teamster, stopped his team on the landing at a wharf at a point 30 to 60 feet from a train, and commenced to unhitch the horses preparatory to hauling another wagon Into position. A movement of the train at this time was made, and the engine let off steam, and otherwise caused much noise. The horses became frightened, and the teamster, in the effort' to control them, was dragged and trampled upon by the horses, inflicting injuries from which he died. The operation of halns at this point at the time of the accident was prohibited by ordinance. Held, that the act of the railroad company was the proximate cause of, the injmies.
In Errol' to the Circuit Court of the United States for the Southern District of Ohio. ., . This was an action to recover damages for the death of plaintiff's Intestate, based upon the ground that the injury which resulted in death was caused·by the wrongful act and negligcnce of the defendant. The injury was sustained on a public landing in the city of Cincinnati, on the morning of September 19, 18!J5, at 6:50 a. m. 'L'his public landing is an open space on the river front, and is a large landing equal in dimensions to about two ordinary city blocks. It extends from the river across the line of 'Vater street to the line of "Front street, and from the east line of Broadway crossing S3·camore street to the west line of Main ,;treet. A railroad track crosses the north end of this public landing in the line of Front street. A spur track branches off from the south sidle of the main track in the line of Sycamol'e street, extending westerly, and pal'llI1<,1 with the main line, into 'Vater street. These are cfllled the "connection tracks," by Tlleans of which passengers and freight are transferred across the city between the east and west systems' of railroad terminals. The trac),s were constructed under the authority and provisions of a city ordinance, by which the plaintiff in error acquired the right to operate only during the nighttime and until 6 o'clock in the morning. The material parts of the ordinance for the purposes of this case are as follows: "The hours whieh said track may be used for the transmission of freight and pallsengers shall be as follows: From the 1st of April to the 1st of October from 8 o'clock p. m. to 6 o'clock a. m., and from the 1st of October to the 1st of April from '1 o'clock p. m. to 6 o'clock a. m., and no cars shall be drawn on the track at any other hours. The companies to have the privilege of using the steam or horse power, as they may, in their judgment, think best; subject, however. to the approval of the city council. But in no caRe shall cars be drawn through the city at a greater speed than six miles per hour." The public landing, during the daytime, was used for all purposes to which a public landing is usually devoted, there being a wharf at the foot of Sycamore street, including its use by wagons, drays, and other suitable vehicles in the transportation of freight, which was discharged and received at the landing. At the
520
hour ,Il.bove, mentioned a freight train operated by plaintiff ,In "error ente.t!d the'publlc;llindlng, and was pushed Into the Water street spnrtrack, slowing up, arid stopping its head end In Water street, with its rear end at or near Sycamore street. At this time the plaintiff's Intestate was driving a two-horse wagon, loaded with tobacco,' from the wharf diagonally across the public landing In the direction of Main street. He stopped at a distance varlouslyestlmated, but whiCh may be put at from 30 to 60 feet from, the train. His team was turned until It' headed west, and the plaintiff's Intestate then began to unhitch the horses, his purpose being to leave the wagon at that place, and drive the horSes back to the wharf to aid In pulling the next wagon up the grade. Just lit this moment a movement of the train was made, letting off steam, and otherwise causing much noise. The horses became frightened. and Hood went: 'qnickly to their heads in the effort to control them. The horses swung around suddenly, and plunged forward. dragging Hood as they went, and finally running over him, and Inflicting the injuries from which he died. ' The main facts attending the accident as thus given are undisputed. The case, as stated In the petition, procee.aed upon the grounds: First. that the cars were being operated unlawfully upon the public landing at the time. In Violation of the ordinance; and, second" that the horses were frightened and the accident caused by the negligent manner In which the train was operated. In the court's Instruction to the .jury the case was thus stated: "The plalntiffdaims that he is entitled to recover damages from defendant-First. because defendant's train, which frightened Hood's horses, and thereby caused t4e, injuries of which he died, was unlawfully upon the public landing in of the ordinance; second, because the frightening of the horses, and the subseq)lent injuries to Hood, were caused by the negligence of the defendant,ll), operating the train." Verdict was returned in plaintiff's favor for the sum of $4,500. A motion for a new trial having been overruled, judgment was duly' entered upon thl) verdict, and to revise that judgment this writ of error is sued out.
,Robert Ram13ey, for:plaintiffip. error. Alfred Mack, for defendant in error. Before TAFT and LURTON, Circuit Judges, and CLARK, District Jlidge. CLARK, District Judge"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 iIi argument for reversal, and presents the only serious ques,tion which could arise on this record. The contention of plaintiff in errol' 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 ordiriance a mere ,contract, and not a police regulation, aud, 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 <;ontrol the case
PITTSBURG, C. & ST. L. RY. CO. V. HOOD.
621
in the absence of such an ordinance. The public landing on which the accident occurred is a public highway in the fullest sense, and must be so regarded for all legal purposes, and the right to occupy such a public highway with a railroad is an extraordinary privilege. Legislative authority must exist to warrant the occupation of such a highway by express grant or by necessary implication. 1 Wood, R. R. (2<1 Ed.) 746; 2 Dill. Mun. Corp. (4th Ed.) § 707; Memphis City R. Co. v. Mayor, etc., of City of Memphis, 4 Cold. 406; People's Pass. Ry. v. Memphis City R. Co., 10 Wall. 38; Barney v. City of Keokuk, 94 U. S. 324; 3 Oook, Corp. § 713. The legislature may, of course, instead of granting by direct act or general legislation the power to railroad companies to occupy streets for the purpose of eonstructing and operating railways thereon, delegate to municipali· ties the right to consent to such use of the streets. In the absence of legislative authority, either direct or through the authorized action of. a municipality, the construction and use by a railroad com· pany of its road longitudinally on a highway or street is a public nuisance, and the company is subject to indictment for creating and maintaining such a nuisance. City of Knoxville v. Africa, 47 U. So App. 74, 23 C. C. A. 252, and 77 Fed. 501; 2 Dill. Mun. Corp. (4th Ed.) § 708; 1 Wood, Nuis. (3d Ed.) pp. 96, 97; Com. v. Old Colony & F. R. R Co., 14 Gray, 93; Railroad Co. v. Naylor, 2 Ohio 8t. 235; Hussner v. Railroad Co., 114 N. Y. 433, 21 N. E. 1002; 1 Wood, Nuis. (3d Ed.) §§ 300, 303. Such unauthorized occupation and use of streets and highways, being wrongful, not only creates a nuisance, but con· stitutes a railway company a trespasser, and renders it liable for such damages as proximately result to persons or property. in the absence of contributory negligence. If authority is given to construct a railroad upon the streets of a city or town, provided the company first obtains the consent of the nmnicipal corporation, or where, by the delegation of power from the legislature, the municipal· ity itself grants the right, reasonable conditions may be annexed to the grant and imposed upon the company as to the construction and operation of its road, such as are deemed essential for the protection of the public interest and safety; and, if these are accepted by the railroad company, they are binding upon the parties. 1 'Yood, R. R. 748; Pacific R. 00. v. City of Leavenworth, 18 Fed. Cas. no3 (No. 10,64£1); Richmond, F. & P. R. Co. v. City of Richmond, flH U. S. 521; 1 Dill. Mun. Corp. (4th Ed.) § 70H. It is this legislative authority, derived either immediately or through the authorized action of the municipality, which protects a railway company in the use of streets for railroad purposes from prosecution and suit for a public nuisance; and, when the consent of a city or town is required, the importance of an ordinance like the one in question is apparent. 'Vhen the ordinance prescribes conditions on which the right is gI':mted, these become binding, and the right to use the :;treets must be exercised strictly within the provisions of the ordinance. Railroad Co. v. Bingham, 87 Tenn. 522, 11 S. VY. 705, is a leading and instructive case upon this subject. Judge Lurton (now one of the judges of this court). delivering the unanimous judgment of the snpreme court of Tennessee, said;
622
94 FEDERAV'REPORTER.
i'M:1". WOOd; In!llii3' work upon RailrOads, lays down what we regard as the sOund and reasonable rule in the following words: "H may be stated as a that whatever ',Is authorized by statute within' tIle scope of ,legislatlve: P9wers Is lawful, and ther,efore cannot be a nuisance. But ,this must beunde'l'stoodas subject to the qualification that, where an act mat 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 COn" ferred or exerCised in or diflJerent manner from that prescribed b;y law, It Is a nuisance ,as ordJfIerence in the mode of its: Whenever, an act is il;ut!:iorized 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 strictly within tIlIl provisions of the law, but alsowith,tl:\e highest ,degree of care to prevent injury to person or property of those may be afl'ectMby such ads,' " , In approvec1
page '759 of the, worki thus same author '
from and
":rhe rule Invariable tbatj,where the statute Imposes conditions upon the use rf ahlghwRY forrallway purposes, they must be complied with, or the railway will be R continuing Town of Hamden v. New Haven & N. 00.,21 Corm. 158; Com. v. Erie &' N. E. ROo.· 27 Pa. St. 339; Inhabitants of Sprlngfieldv. Connecticut R. R. Co.;4Cush.63;People v. Dutchess & C. 'R. Co.! lJ8 i N.Y. ,152."
See, also, Harmon v. Railroad Co., 87 'renn. 614, 11 S. W. 703, in which the doctrine of Railroad QQ. Y. Bingham is .reaffirmed. .In Railroad CO. v. Naylor, 2 Ohio St. 235, the facts were that the charter (}f: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 th(rroad to the discretion of the corporation.;': IAfter the road had been once located, the company unuertook to'relbC8i,te and to change and rebuild the road, and in doing so rendered the premises- of the defendant in errorless valuable than they had been before, for 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, tIle next question arises,-wI;1etlwr they are liable to the defendant in error for the damage Which he has sustained by such relocation.. It is contended that, inasmuch as the road as relocated does not touch his property, tIle company cannot be made liable. It Is a general principle of law that a person is liable for alI tM damage done by his illegal act, and this whetIler tIle Injury was intended or not. It is well l:!ettIed that an action lies as well for damage to adjoining property, by stopping or Impeding the travel on, to, or from ll: street or highway, as lI,ny other damage that can be dorie 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 rltilroad under such circumstances is negligent, but upon the ground that the prosecution of the is unauthorized by law, and constitutes a nuisance. Accordingly, in Oongreve v. Smith, 18 N. Y. 79,the court of appeals of New York, speaking by Strong, J., said:
C. &: ST. L. RY. CO. V. HOOD.
623
"The general doctrine is that the public are entitled to the str.eet or highway in the condition 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, indiYiduals 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 case 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 witlh 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 eyen the adjoining owner, whether the fee of the street be in himself 01' in the public, has the right to do any act which renders the use {)f 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 placing 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., 111U. 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 AU. 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 tllatsuffered 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 Gh. 588, Railway qo. v. Truman, 11 App, Cas. 45, in which the common law, as. well as the effect of certain statutory enactments, . were stated. IUs conceded, and could not be controverted, that the legislature of Ohio conferred upon the city power to grant the right to construct and use 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 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, 22C. 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
.624
114 FEDERAL REPORTER.
QVer the power to Ii;rotect the safety of persons and property, might n9t impose, by ordinance duly enacted, conditions uMn the operation of a railway through the streets of a city, similar to the provisions contained in theordina:n.ce now in question. 1 Dill. Corp. (4th Ed.) §§ 393, 713; Richmond, F. &iF. R. Co. v. Gity of Richmond, 96 U. S. '521; Chicago, B.& Q. R Go. v. Nebraska, 170U. S. 57, 18 Sup. Ct. 513; Gaslight Go. v. Murphy, 170 U. S. 78, J8 Sup,. Ct. 505. It being and here conceded, that tpe city was vested with power to make the grant with conditionr; annexed, it is unnecessary for us to decide to what extent the power to .iInp6se" conditions would exist in t,lle absence of express lef,rislativeallthority to do so. It is not to be doubted that the purpose of the legislature in conferring upon the power to consent to the use of the public landing with 'conditions was to enable the city to properly exercise its police power in the protection of persons and property against great danger in a public and muchused place, such as this landing. And in this view it is not open to reasonable--question that the ordinance as, enacted combines contractual, as well as police provisions, the latter being i:o: the interest of the public safety. In,so far as the ordinance granted the right or franchise to construct and operate a railway upon this public ground, it became, when accepted, a contra.ct; but the provision by which the use of the track was prohibited during the daytime was in its nature and effect a municipal or police regulation operating in the interest of pUblic safety. McDonald v. Railway Co., 43 U. S. App.79, 20 C. C. A. 322, and 74 Fed. 104; Hayes v. Railroad Co., 111 U. S. 228, 4 Sup.Ct. 369; Joy v. City of St. Louis, 138 D. S. 42, ·11 Sup. Ct. 243. This police provision having been enacted pursuant :to clear legislative authority, the fact that it is found in an ordinance which also contains contract provisions does not change the result or affect the essential character of the power exercised; and this police provision, being thus specifically authorized and duly enacted, unquestionably hlUl, within the corporate limits, the force of a law enacted by the legislature of the state. Hayes v. Railroad 00.,111 U. S. 228, 4 Sup.Ot. 369; Robbins v. City of Chicago, 4 Wall. 657; City of Chicagov. Robbins, 2 Black, 418; Doran v. Flood, 47 Fed. 54R; McDonald v. Railway Co., 43 D. S. App. 79, 20 C. C. A. 3221 and 74 Fed. 104; 1 Dill. Mun. Corp. (4th Ed.) §§ 308, 393. It results from this view that the operation of the railroad by plaintiff in error during the daythne, contrary to the prdvisions of the ordinance aviolatio,n of law, and constituted a nuisance. it is finally insisted that there was error in the court's holding that the act of plaintiff in error wal> the proximate cauSe of the injury sustained. ,The proximate causal connection between the wrongful operation of the raill'Qad 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 D.' S. App. 79, 20 C. C. A. 322, and 74 Fed. 104; Railroad Co. v; Reesman, 9 C. A. 20, 60 Fed. 374, a.nd 19 D. S. App. 596; RaJes v. Railroad 00., 111 D. S. 228, 4 Sup. Ct. 369; "Vhart. Neg. § 107. Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. 369, strongly supports throughout the conclusions at which
HICKS V. KNOST.
625
we arrive in this case. And this is so notwitbstanding tbe difference in the specifie ground of liability declared in that case and in tbis. Substantially the same grounds urged for reversal here were pressed 'lIpon the attention of the court unsuccessfully in that case. In that case the liability the defendant was put upon the ground of negligence in the omission of a duty imposed by ordinance, while the ground of liability in the case at bar is that of a public nuisance causing special injury. In that case the operation of the railway was permitted, and the mode of operation regulated, whereas in this case the use of the rail way track at the time was expressly prohibited. Tht; provision of law in that case went to the manner of operation, while in this it goes to and denie8 the right to operate at all. The distinction is between the prosecution of a lawful business in a negligent manner and the prosecution of a business prohibited by law. The breach of law in that case was an omission of duty imposed, and in this the commis8ion of a wrong expressly prohibited. 'Ybethel', in the ordinary case, where the original aet of the defendant is lawful, or authorized by statute, negligence is the gist of the action, or a necessary element, we are not required to decide, as the original act in the case at bar was clearly unlawful and wrongful. The cases relied on by counsel for plaintiff in error are those in which tbe business was lawful, and the question was whether the business was operated in a negligent or unlawful manner. In view of tbe distinction which we have stated, such cases are not applicable. WOe conclude, therefore, in view of the whole case, that the court rightly instructed the jury that tbe undisputed facts established a right to recover, unleS!! 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 tbe train unlawfully upon the public landing constituted also a case of negligence does not affect the coerectness of the Pl'oposition that the plaintiff was, upon the undisputed facts, entitled to recover, pl'ovided plaintiff's intestate was in the exercise of due care on hiB p;trt. We 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 tbe question. Judgment affirmed.
HICKS v. KNOST. (District Court, S. D. Ohio, W. D. 1,781. Under the bankruptcy act of 1898, a federal district court sitting in bankruptcy has no jurisdiction of a bill in equity by a trustee in bankruptcy against a creditor of the bankrupt to recover from the defendant money alleged to have been pll.id to him by the bankrupt as a preference or in fraud of the other creditors. Such a suit must be brought in the proper state court or federal circuit court. 94F.-40 BY TRUSTEE.
June 1, 1899.)