District of Columbia v. Moulton, 182 U.S. 576 (1901)

DISTRICT OF COLUMBIA v. MOULTON.

Park street is a public highway in the northwest section of the Washington. For some days before the accident which was t ® of this action, a steam roller had been used in connection wit of resurfacing the street with macadam. This roller became is and was placed close to the south curb of the street, a canvas co placed over it, and it was left there for two days. On the secon horse of the plaintiff in error, being driven along the street, ec tive from the flapping of the canvas cover, reared, and UPS® and threw out the plaintiff, injuring him. Held that the 1S lumbia was not liable for the injuries which the plainti so su

This action was begun by the defendant in error in the Supreme Court of the District of Columbia. In substance he asserted in his declaration a right to recover from the District of Columbia a specified sum, upon the ground that by its negligence, on November *26,*1896, he had sustained serious personal injury. The negligence averred consisted in this, that for a space of two days prior to and including the date named the District had negligently and knowingly left upon a public highway known as Park street a large steam roller, which was calculated to frighten horses of ordinary gentleness; and while plaintiff was driving along said street, with due care, in a carnage drawn by a horse of that disposition, the animal was frightened and rendered unmanageable by the steam roller, and in the struggles of the horse one of the wheels of the carriage was broken, plaintiff was thrown out upon the ground with great force, and he sustained the injuries for which recovery was asked. Defendant filed a plea of the general issue.

The evidence most favorable to the contention of the plaintiff tended to show the following: Park street is a public highway in the northwest section of the city of Washington, commencing at Fourteenth street and running westwardly. For several days prior to the accident in question a steam roller had een used in connection with the work of resurfacing Park street with macadam. This roller was of the kind usually empoyed in constructing macadamized gravel roads. It had fee wheels, the tread of the rear wheel being about eight feet, w ich was its extreme width. The machine was about eight e,e on^and about five or six feet high. The smokestack was * ]. te higher than the other part of the machine. While the 0 er was in use, on the forenoon of the day before the acci^en ereinafter referred to, it “ broke down.” The nature of 61!^ury to the roller does not appear, otherwise than as it i rem e,ln^erre(^ ^rom the fact that the roller was subsequently I abled'6 ^Orse Powcr? that the machinery was simply dis-to th U ^ecorn^n& out of order, the roller was placed close of p,e S0U^1 curb of Park street, from twenty to fifty feet west ^iiie1 iT S^"ee^ a s^reet fifty feet in width—and distant about

About 3 o’clock on the afternoon of November 26, 1896, (Thanksgiving Day,) plaintiff drove into Park street from Fourteenth street, and as he did so saw the steam roller. The horse he was driving was one which the plaintiff had owned for several years, was regarded as of an ordinary gentle disposition and had several times been driven safely past steam rollers when they were in actual operation. Plaintiff guided his horse, intending to pass by the roller in the space to the right thereof, but on approaching Pine street the horse became restive—from the flapping of the canvas cover on the roller or from some other cause—and when about opposite the middle of Pine street became unmanageable, reared and upset the vehicle, throwing out and injuring the plaintiff. The evidence also tended to show that other horses in passing the roller had exhibited fear.

The case was tried to a jury, and resulted in a verdict for the plaintiff. On appeal the judgment was affirmed by the Court of Appeals of the District. 15 App. D. C. 363.

Mr. Andrew B. Duvall for plaintiff in error. Mr. Clarence A. Brandenburg was on his brief.

Mr. A. & Worthington for defendant in error. Mr. Charles L. Brailey was on his brief.

Me. Justice White, after making the foregoing statement, delivered the opinion of the court.

That the District of Columbia is not an insurer of t e of travelers upon its streets is, of course, unquestion? • being so, we think the lower courts erred in upho inS liability of the District for the injuries sustained by t e p tiff, under the circumstances disclosed in the record.

The sole negligence complained of in the declaration was averred to consist in keeping the steam roller in question on Park street for the space of two days so as to be a public nuisance and dangerous to travelers passing along said street with their carriages and horses. There was no allegation that the roller in consequence of its being disabled presented such a changed appearance that the danger of its frightening an animal was enhanced. Nor was there any averment that the negligence was committed in the use of the canvas covering, and no proof was offered on the trial tending to show that such a cover was not the means usually employed to protect steam

rollers from the weather when they were lawfully on the street and for the time being not in use. Where but one inference can reasonably be drawn from the evidence the question of negligence or no negligence is one of aw for the court. Northern Pacific Railroad Co. v. Freeman, U. S. 379,384; Met/ropolitan Railway Co. v. Jackson, 3 App. as. 193. It is only where the evidence is such that reasonable ^en may fairly differ as to the deductions to be drawn thereof, that the determination of the fact of negligence should be

a ^a'm^ v. Baltimore c& Ohio Railroad,

We shall assume that the period when the steam roller became unserviceable while in use on Park street was the forenoon of the day prior to the accident, as claimed by the plaintiff. The right, however, to use a steam roller upon a public street for the purpose of the repair of such street we think necessarily includes the right to retain the roller upon the street until a reasonable time after the necessity for the use of the machine has terminated, in the meantime exercising due care in the deposit of the machine when not in use and giving due notice and warning to the public of the presence of such machine if travel upon the street is permitted. We can perceive no difference in principle between using and keeping a steam roller on the streets until the completion of a particular work and the maintaining a lawful excavation, such as for the construction of a sewer or of an underground road and the use of an engine, derrick, etc., in connection with the hoisting of earth from an excavation. The appliances used in connection with such excavations, even though calculated to frighten horses of ordinary gentleness not familiar with such objects, undoubtedly may e retained at the place where needed until the necessity there or has ceased, and the circumstance that such appliances become temporarily disabled cannot, in reason, be held to affect e right of the municipal authorities to keep such machinery on the works until in the ordinary course of events and in e exercise of a reasonable discretion it is found convenient ei er to there make the needed repairs or to remove the app iance, elsewhere for that purpose. Now, the only inference warran e by the record is that when the steam roller in question go o of order it was being used upon the street, and the necessi y its further use continued to exist. Had the machine no ^ere down, or had needed repairs been made to it at the p ace.^we(j the roller was deposited, it might lawfully have been to remain upon the street while its further use was re^-njer and. until it was reasonably convenient to remove i •

such a state of facts as has been detailed there was nothing either in the circumstance of the disabling of the machine, or in the detention, warranting the inference that the right to leave the roller upon the street over a legal holiday did not exist, and that an illegal use of the highway had originated. It follows that the facts in evidence respecting the keeping of the roller on Park street during the period referred to did not justify the submission to the jury of the question whether the District was negligent in so keeping the machine, as it could not reasonably have been inferred that the employes of the District were negligent in failing to remove the machine before the occurrence of the accident.

As respects the notice owing to the plaintiff of the presence of the roller, we agree with the opinion of the Supreme Judicial Court of Maine in Lane n. Lewiston, supra, that where a steam roller is allowed to remain upon a municipal highway it is requisite that the municipality causing the obstruction should give reasonable notice to the traveling public of its presence, but that a view of its obstruction itself in time to avoid it without injury amounts to notice. In other words, as stated by the Maine court, “ No one needs notice of what he already knows,” and “Knowledge of the danger is equivalent to prior notice.” 91 Maine, 296. That the plaintiff had notice of the presence of the roller on Park street in ample time to have avoided it, is undisputed. When he turned from Fourteenth street into Park street it was broad daylight, there was nothing to obstruct his view westward, and in fact he testified that the roller was in plain sight. He was not induced or directed by the agents of the District to proceed past the roller. He knew that such objects sometimes frightened horses, but from his acquaintance with the disposition of his horse he believed that he could control the animal and drive safely past the roller, and he voluntarily undertook to do so. Now, it seems clear—particularly as t e danger was neither hidden nor concealed—that the District was under no obligation to restrain the plaintiff from attemptn'k t°,Pass’ either by closing Park street or by other means.

The foregoing observations sufficiently indicate the errors committed by the trial court in the instructions given to the jury and in the refusal to give requested instructions, to which exceptions were noted. It suffices to say in conclusion that the trial court erred in refusing to instruct the jury, as requeste, that upon the whole evidence in the case their verdict shou be for the District. As said by this court, speaking throng Mr. Justice Blatchford, in Schofield v. Chicago, Milwaukee & St. Paul Railway Co., 114 U. S. 615, 618 :

“ It is the settled law of this court that, when the evi ence given at the trial, with all the inferences which the jury cou justifiably draw from it, is insufficient to support a ver ic or the plaintiff, so that such a verdict, if returned, must e s aside, the court is not bound to submit the case to the jury, may direct a verdict for the defendant. Improvement o. Munson, 14 Wall. 442 ; Pleasants v. Fant, 22 Wall, lib ; - lert n. Butler, 97 ü. S. 319 ; Bowditch v. Boston, 101' Griggs v. Houston, 104 U. S. 553 ; Randall v. « v Ohio Rail/road Co., 109 IL S. 478 ; Anderson County Co

Beal, 113 IT. S. 227; Baylis v. Travelers' Insurance Co., 113 U. S. 316.”

The judgment of the Court of Appeals of the District of Columbia is reversed, with instructions to that court to reverse the judgment of the Supreme Court of the District of Columbia, and to grant a new trial.