Jochem v. Robinson

Cassoday, J. The complaint is unnecessarily long, repetitious, argumentative, and inartistic, but such infirmities are not before us on this appeal. The primary object of a public street in a city is for public travel. King v. Russell, 6 East, 430. ‘The same is true of a public sidewalk. Neither may be always wholly restricted to such use. . Business men and their employees must have access to and from .their places of business, and .so must their customers. Dealers, and especially wholesale dealers in the crowded portion of [642] a large city, as here, must, moreover, have an opportunity for receiving and shipping goods more or less bulky and ponderous, and often in the original packages. Such reception and shipment of goods must necessarily, at times, more or less hinder or obstruct travel upon public sidewalks, and even upon public streets. Welsh v. Wilson, 101 N. Y. 254. The right to so hinder or obstruct is by no means absolute or continuous. King v. Russell, supra; Rex v. Cross, 3 Camp. 224; Rex v. Jones, 3 Camp. 230; Comm. v. Passmore, 1 Serg. & R. 219; People v. Cunningham, 1 Denio, 524; Reimer's Appeal, 45 Am. Rep. 373; Branahan v. Hotel C. 48 Am. Rep. 457. It is, at most, temporary. It depends upon the necessity, and the necessity may depend upon the size and weight of the packages handled, the duration of the obstruction, and, perhaps, other circumstances. Ilid. “This necessity need not be absolute; it is enough if it be reasonable.” Comm. v. Passmore, 1 Serg. & R. 219; People v. Cunningham, 1 Denio, 530. If the law required an absolute necessity, but few could escape liability. The case is distinguishable from Denby v. Willer, 59 Wis. 240, where the defendant justified under an ordinance of the city; and, besides, there was in that case room for the traveler to pass by. It follows from what has been said that, whenever such dealer so hinders or 'obstructs public travel upon such sidewalk or street, he thereby takes upon himself the burden of showing the obstruction to have been reasonably necessary and temporary. Failing to do so, he is responsible for any injury therefrom to a traveler upon such street or sidewalk, in the exercise of ordinary care. Palmer v. Silverthorn, 32 Pa. St. 69; Wood v. Mears, 12 Ind. 515. Ordinarily, the question of reasonable necessity must be for the jury. In the case of very bulky and ponderous packages or articles, the court may, upon certain facts and under certain circumstances, perhaps, be justified in holding, as a matter of law, that a temporary necessity for hin [643] dering or obstructing travel existed in fact. So, where the packages are very small and light, the court may, upon certain facts and under certain circumstances, perhaps, be justified in holding, as á matter of law, that no such necessity existed. 'The question here presented is whether the court, upon the facts alleged in the complaint, was justified in holding, as a matter of law, that the use of the skid and toe-board mentioned were, at the time and place in question, reasonably necessary in moving “ merchandise packed in kegs of the capacity of about five gallons each,” and “ each package weighing less than fifty pounds,” from the front door of the store of the defendants to their sleigh in the roadway. To so hold, the facts and circumstances must not only be undisputed, but unambiguous, and of such a nature that all reasonable men, unaffected by bias or prejudice, would agree that a reasonable necessity existed for the use of the skid and toe-board. We are unable to reach any such conclusion. On the contrary, we must hold that the inferences and conclusions to be drawn from the facts and circumstances alleged are such as to reasonably justify a difference of opinion, among fair-minded and unprejudiced men, as to the existence of such necessity. Upon the same principles, we must hold, as this court-has frequently held, that the fact that the plaintiff attempted to cross the skid and toe-board, under the facts and circumstances alleged, does not raise a presumption of contributory negligence on his part. See Wehlin v. Ballard, L. R. 17 Q. B. Div. 122. That question, like the other, is properly for the jury. By the Oourt. — ■ The order of the county court is reversed, and the cause is remanded for further proceedings according to law. ;