City of Scranton v. Catterson

Mr. Justice Trunkey delivered the opinion of the court, That the city of Scranton is clothed with the power and duty of keeping her streets in repair is conceded. No' question was made but that the Scranton Gas and Water Company is a corporation, with right to enter upon the highways to occupy, ditch, lay and repair pipes when necessary; and the court charged, in answer to defendant’s sixth point, that the company had the right to construct such works as the law-making power had authorized, but that the company could not put a structural obstruction in the public highway, and, if they.did, and the attention of the city was called to it, followed by neglect to remove it, the city would be liable for an injury caused by the obstruction, in absence of concurrent negligence by the person injured. In answer to the fourth point, the jury were instructed that “ it matters not who put the obstruction there, provided you find from the evidence the city had notice that the obstruction was there and permitted it to remain.” There was no evidence to warrant the jury in finding the facts on which defendant’s third point was based. In view of the evidence, the second, third and fourth assignments cannot be sustained, but it would be otherwise if the charter of the company vested them with power to erect and maintain the obstruction. The evidence warranted a finding that the company placed the plug a long time before the accident, leaving its top about an inch above the grade, and afterwards the city lowered the grade of the street, leaving the top of the plug a number of inches above. •Hence, this is wholly unlike a case where an accident occurred during the progress, or immediately after completion, of ditching. [206] and laying pipe, and before the city had notice of the construction of a nuisance. The first alleged error, and the one mainly relied on, is the rejection of the charter of the Scranton Gas and Water Company, offered for the purpose of showing their right to put the plug in at the point of the accident; that the city has no control over it, and that they are not the servants or agents of, nor responsible to, the city. The right of the company to put the plug in at that place, or any other which they deemed necessary, was not denied; but the real question is, have the company authority to place and maintain an obstruction on the street ? If so, the offer was admissible, and it was a fatal error to deny it. The charter might well have been received, and, had it been, the court would have declared its meaning. But if, on inspection, the court saw it contained nothing to the purpose of the offer, no harm was done by its rejection. The plaintiff in error has failed to point to any thing in the charter that authorizes the company to maintain a dangerous obstruction on any highway in the city. They may occupy the streets, for the necessary time, to ditch, lay and repair pipes and place plugs, but no testimony, or offer of testimony, shows that they may leave the top of a plug so far above the grade as to be dangerous to persons travelling the streets. Should they construct a dangerous public nuisance on the highway, the duty of the city, after notice thereof, is plain. If the plug was properly placed, and afterwards the city lowered the grade, thereby causing the obstruction, it was inexcusable neglect. We are of opinion that the charter contained nothing to relieve the city from liability for its sufferance of the nuisance. Judgment affirmed.