County of Lehigh v. Hoffort

Opinion, Mr. Justice Clark : On the 5th day of October, 1883, the plaintiff, whilst passing over the bridge across Jordan creek and meadows in the city of Allentown, was caught by the wheel of a wagon drawn by a runaway team of horses, and injured. The bridge is about six hundred feet long and twenty-six feet wide; the City Passenger Railway occupying eight feet on one side, the wagon road fourteen feet on the centre, and the footwalk four feet on the other .side. It is. a stone structure, and is conceded to have been originally constructed and since maintained as a county bridge. The plaintiff at the time of the injury was on the footway, which was not separated from the cart way or wagon road by any guard or rail, but merely by a stone curb six inches in height. As the team of runaway horses approached her, she leaned over the parapet of the bridge to escape harm, but the hub of the wheel struck her a severe blow in the back, and this suit is brought to recover damages from the county of Lehigh for the injuries sustained. It is not pretended that the injury complained of resulted from any want of repair or defect in the bridge. It is said, however, that the bridge was insufficient; that it was too narrow; that there was not a sidewalk of adequate width for foot passengers, and that the sidewalk was not properly protected by a rail or guard from the vehicles on the wagon road. The bridge was erected half a century ago when Allentown was but a small country village situate wholly on one side of Jordan creek, and it is not improbable that owing to the rapid growth of the city and the great increase of its population, the bridge has not now the capacity to accommodate the public in as full and ample manner as might be desired; but it is shown to be a solid stone bridge in proper condition of repair, and in [127] all respects substantial and secure. The county commissioners have maintained the bridge as it was originally designed and constructed; all the requirements of the law were satisfied in its original approval, and the duty of the commissioners was discharged in the proper maintenance of the structure according to its original design. It must certainly be conceded that the county of Lehigh is not now to be convicted of negligence, because the commissioners, in the exercise of a proper discretion, failed to anticipate the growth of the city, or, in the exercise of that discretion, have failed to determine the necessity for a new bridge or for such additions or improvements as may be supposed to be necessary to meet the demands of a greatly increased trav el upon it. Nor can it be said that the commissioners should have anticipated that horses would become frightened and unmanageable on the wagon road, and would break away from control on the bridge and that injuries ¿night thereby be inflicted on the foot passengers. It is unreasonable to suppose that such a condition of things should have been foreseen as the result of their failure and neglect to erect a rail or barrier above the curb. As well, indeed with much more propriety, might we hold the city of Philadelphia bound to erect barriers on either side of Chestnut street, to protect the people who from day to day throng the sidewalks of that street. Runaway horses are liable to come upon the pavement in all streets, and the authorities are not bound to guard against this mere possibility. But it is said that by a special act of Assembly approved in the year 1870, an absolute duty was imposed upon the county of Lehigh to provide a larger accommodation to foot passengers on this bridge. By this statute it is enacted: “ That the commissioners of Lehigh county are hereby authorized to erect foot sidewalks, adjoining the stone bridge crossing Jordan creek at the Hamilton street crossing, in the city of Allentown, county of Lehigh, Pennsylvania, at the cost and expense of the county.” It is plain that the language employed by the legislature in the draft of this bill is not essentially of a mandatory character. If the provision is held to be imperative, it must be upon some rule of construction which will impart to the words an interpretation beyond their usual and ordinary signification. The [128] comity commissioners were by the express terms of the act simply “authorized,” not required, to erect foot sidewalks adjoining the stone bridge at the cost and expense of the county. No time was indicated within which the work was to be performed, nor is ‘the manner or method of the performance in any way prescribed, or any particular fund in the immediate control of the state appropriated to the purpose. The matter is left wholly to the judgment and discretion of the county commissioners, who, as the representatives of the people and of the public in the administration of the affairs of the county, might be supposed to have especial facilities for knowing, not only when the public interests required, but when the county was prepared, to undertake the proposed improvement; and the legislative intent doubtless was, that the powers conferred would be exercised at such time and in such manner as the public interests would require and the ability of the county would permit, and of this the commissioners were to judge. A municipal corporation is not liable to an action for damages for the non-exercise of discretionary powers of a public character: Dillon on Municipal Corporations, 753. The general rule in such cases is thus stated in Carr v. Northern Liberties, 35 Penn. St. 324: “ Where any person has a right to demand the exercise of a public function, and there is an officer or set of officers authorized to exercise that function, there the right and the authority give rise to the duty; but when the right depends upon the grant of authority, and that authority is essentially discretionary, no legal duty is imposed.” Therefore it was held that an action would not lie against a municipal corporation invested with the power to construct sewers for neglecting to construct a proper system of drainage, in consequence of which a citizen’s store was overflowed and his goods damaged. “We do not admit,” said Chief Justice Lowkib, “that the grant of authority to the corporation to construct sewers amounts to an imposition of a duty to do it.” To the same effect is Grant v. City of Erie, 69 Idem 420. The case of Goodsale v. City of Chicago, 20 Ill. 445, is directly in point. The city of Chicago, among other powers, had express authority to remove all obstructions in the harbor, but it was held, that if the city had never undertaken to exer [129] cise the power, it was not liable to a party who had sustained damage from a sunken hulk remaining there. If, however, says Catón, J., the city had entered upon the work of removing the hulk, and in doing so had carelessly left it in an exposed-condition, by reason of which the navigator’s vessel was injured, it would be liable for such negligence. So, too, we apprehend if the county of Lehigh had actually undertaken the erection of the footwallc outside of the bridge, it would have been liable for injuries from the negligent performance of the work. But as the work was never undertaken, no such question arises. * The learned court instructed the jurors that, apart from the special statute of 1870, no negligence of the county was shown, and that under the statute it was not the absolute duty of the county to build the footwalks on the outside of the bridge; yet notwithstanding this, that inasmuch as the commissioners had the authority to do so, if they (the jurors) believed the bridge was insufficient reasonably to accommodate the travel and in their judgment the sidewalks were necessary for the public accommodation, they might find the county guilty of negligence. This was simply substituting the discretion of jury for that of the commissioners, and in the light of the authorities we have cited was clear error. The judgment is reversed.