Frazier v. Butler Borough

Opinion by Mr. Justice Dean, Peter Schenk and H. Schreideman owned two lots fronting one hundred and ninety-four feet on Jefferson street in Butler borough; the sidewalks were of boards, for which they desired to substitute permanent stone pavement, and accordingly they let the contract for the preparatory grading to Samuel Kidd. The grading was somewhat heavy, being a cut at one end and a fill at the other; the contractor commenced the work on March 16,1892, and continued it until completed. During the progress of the work, large piles of earth and rubbish were deposited on the street, which last, between the curbs, was twenty-five feet wide; a large part of this earth and rubbish was removed each day, but generally there remained each night a — 412 — pile of that taken out, and this had been the case from the 16th of March, the commencement of the work, until the 24th, a period of eight days; but it was not the same that had been taken out the first day; may have been that deposited on the day before; the evidence seemed to show the contractor did not remove the earth and rubbish as fast as it was deposited on the street, the result being it was continuously incumbered with a pile of it, night and day. After dark on the last named date, March 24, the plaintiff was driving with a companion along the street in a buggy, at an ordinary speed, when his wheel struck the pile of rubbish, the buggy was upset, and he was seriously injured; there was no light or watchman to warn travelers of the obstruction. He brought suit for damages, and the jury, under the law announced by the court as applicable to the evidence, awarded him $800. Judgment being entered on the verdict, defendant appeals, assigning six errors. The first is, to the instruction of the court, that as the year before the borough had cut down the grade of the street to a depth of several feet, it must have been known to the authorities that the'sidewalks would be cut down to a grade to conform to the street, and it was therefore their duty to see to it that by such work the street was not rendered dangerous, and unnecessarily obstructed. There was no error in this instruction. The streets and highways of boroughs are under the control and supervision of councils; if b}^ municipal legislation, as here, very considerable changes in grade of the driveway or street were made, rendering necessary considerable change in the sidewalks, care, according to the circumstances, required close supervision on part of the borough authorities of the conduct of property owners. It was not the case of a property owner merely replacing an old boardwalk in front of his property with a stone walk, where no other change was necessary, but that of the excavation to the depth of two to five feet for the breadth of the sidewalk of large quantities of earth and rubbish along the driveway of a much used street only twenty-five feet wide. Clearly, it was the duty of the borough authorities, under such circumstances, to exercise more watchfulness, than under those involving no such danger to the traveling public. The second assignment is to the instruction on the right of the lot owner to obstruct the street with the rubbish. The — 413 — plaintiff alleged the piling of earth on the street was wholly unnecessary; that there was ample room on the owners’ lots for the deposit of such material: but that if it was necessary to use the street for this purpose it was not necessary to leave any portion of it over night. The court left it to the jury to say whether, under all the circumstances, it was necessary to use the street as a place of deposit, and whether it was reasonably necessary to leave the material there for a day or several days. In this there was no error, he had already told them the temporary obstruction of'the public streets for purposes of improvement, if a reasonable necessity existed therefor, was not unlawful, and the borough was not answerable in damages for permitting such obstruction; but whether this obstruction was reasonably necessary was a question of fact, and this was for the jury to decide. The third assignment is to the answer of the court to plaintiff’s third point. Peter Schenk, one of the improving lot owners, who, through his contract with Kidd, deposited the rubbish, was a member of the borough council; therefore, plaintiff put this point to the court: “That if Peter Schenk, a member of the town council, had knowledge of this obstruction, it visits notice on the municipal authorities.” To this the court answered as follows: “In the absence of any evidence showing that the care of the streets had been committed to particular members of the town council, every member thereof must be taken as the agent of the borough. For that purpose a notice to a member must be regarded as notice to the body to which he belonged. It does not appear how frequently borough councils met, and it would be intolerable to hold that the obstruction must be permitted to continue until the body would be assembled in an official meeting.” In fact, this was no answer to the point, and if the verdict had been the other way, plaintiff might-well have complained of the answer as not responsive to his point. The court was asked to say that if Peter Schenk had knowledge of this obstruction, that was notice to the borough; this involved, first a question of fact, whether he had knowledge ; it did not follow, because he had contracted with Kidd to make the excavation, he had knowledge that the contractor was leaving any portion of the material on the street, so as to impede or make dangerous travel; a careful scrutiny of Schenk’s — 414 — testimony leaves this fact in doubt; but if he had knowledge as a lot owner, was that notice to the borough ? Knowledge and notice are not necessarily and not always the same. Undoubtedly if any one had given notice to Schenk, councilman, of the character of the obstruction put upon the street by Kidd, so far as notice to one member of councils would affect the borough, there would have been notice. But whether, as a fact, he had knowledge, the jury was not instructed to find, and whether as matter of law, such knowledge was notice to the borough, the court did not determine. So practically the point was not answered; was not affirmed. The case, in this particular, really went to the jury on the instructions in the general charge as follows: “ The law assumes that after a certain time they shall take notice of obstructions of such a character. That depends upon the circumstances of the case, to be sure, and how long the obstruction may remain upon the street, in order to charge the officers of the borough with notice. We refer you to the rule, hereinbefore laid down with regard to the degree of diligence which the officers are to exercise according to the extent of the use of the street, and other facts which might bring knowledge home to them, and of which they should take notice.” The same instruction, in substance, was given in the answer to defendant’s second point, thus : “ Though if you should conclude the particular pile of rubbish on which the plaintiff was injured had not been on the street over a day or two, if you find that others of a similar character had previously, from time to time, occupied substantially the same place, so that the one complained of was but a later one of a series of such obstructions, the municipality may be affected with notice, if, considering the extent of travel upon Jefferson street, the demands of the public thereon, and the period of time over which such obstruction extended, and in view of the law already stated as to the duties of borough officers in this behalf, you think they should, in the exercise of reasonable diligence, have known of the obstruction.” • Considering the whole charge, on the question of notice, the case was clearly and correctly submitted to the jury. They were instructed that they might infer, if from the character of the obstruction it was conspicuous or noticeable, and if it had been long continued, that the borough had notice of it. — 415 — But an affirmance of plaintiff’s third point would have been error. Knowledge by a member of councils,of a nuisance is not of itself notice to the borough; to so hold, would make the borough answerable for every individual violation of municipal law and ordinances by all its members. As this borough does not seem to have had a street committee, commissioner of highways, or other officers to whom was specially confided the duty of supervising the streets, that duty must necessarily be considered as resting with the borough councils as a body; express notice given to any one of these in his official capacity of a violation of borough law would be notice to the body of which he was a member; but his knowledge and acts as an individual are not notice to the municipality of which he is an official representative. Assuming each member to have been an agent of the borough in the supervision of its streets, and the knowledge of the agent to have been the knowledge of his principal, that knowledge must come to him in the course of the transaction of the business of his principal. Here, Schenk’s knowledge, if he had such knowledge, came to him as an individual lot owner, engaged in the improvement of his lot; this had no relation to his official duty as councilman; he was performing no duty as a member of that body, but was in fact answerable to it for the manner in which he conducted his improvement as a lot owner. The council could have notified him to stop placing earth unnecessarily on the street, and leaving it there; could have had him arrested for the violation of the borough ordinances prohibiting such obstruction, if he persisted; and this because he was not in that particular business a councilman acting in his official capacity, but was acting as an individual lot owner in violation of the borough law. The case would have been otherwise, had he, as councilman, been superintending and directing the excavation of a street or sidewalk for the borough ; under such circumstances, knowledge on his part would have been the knowledge of the principal. And while thus officially acting, he would not have been personally answerable to third parties, but his principal would have been affected with notice of his acts within the scope of his authority, and would have been alone answerable. But in this case his personal responsibility is wholly unimpaired, because his acts were unofficial. To say that because Schenk knew of the unsafe method, — 416 — therefore his principal, the borough, knew, would compel us to go further and say, as the borough knew its agent, Schenk, was wrongfully obstructing the street, the agent is not answerable to the principal for any injury caused thereby; this would leave every member of councils free to adopt dangerous methods for the improvement of his own property, and at the same time leave the borough answerable to the general public for the damages consequent upon his acts; that is, the borough would become insurers of its officers against responsibility for individual wrongful acts. While the court came dangerously near giving the erroneous instruction asked for, it did not in fact give it, and the jury went to their room controlled by the correct instructions in the general charge, and the answer to defendant’s second point. Therefore this assignment of error is not sustained. The fourth and fifth assignments raise in effect the same question as the second and require no further notice. The sixth is to the refusal of a prayer for peremptory instruction for defendant. The case was clearly one for the jury, and the court could not, without error, have withdrawn it from them. All the assignments of error are overruled, and the judgment is affirmed.