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Vol. II.]

GILMAN v. LACONIA.

[No. 8.

ditch, and thus conveyed it to his house, for his own use, leaving the culvert open.

It was contended by the plaintiffs that the defendant had no right to a passage for his watercourse, or, in other words, that the town had a right to stop the watercourse, discontinue the culvert, and make a solid road-bed across the channel. This was denied by the court. The doctrine of the case is thus stated in the head-note: If the owner of land over which a highway is laid out have on the land an artificial watercourse, used to convey water to his house, the road ought to be constructed and maintained with a culvert or other suitable passage for the watercourse, unless the difficulty and expense of providing such a passage would exceed the damage of stopping the watercourse, and make it unreasonable to require the road to be so constructed and maintained. In delivering the opinion of the court, Perley, C. J., says (p. 394): The defendant, then, had a right to a suitable culvert to convey the water in this watercourse across the road, and it was the duty of the town to provide and maintain it for him; and when the culvert was filled up and stopped, by neglect of that duty, it was a nuisance, which caused the defendant a private and individual damage; and, on general principles, he had a right to remove it himself, in a proper manner, doing no unnecessary damage.

It is manifest that this case can be sustained upon no other ground than that the towns owe a duty to the land-owner as well as to the traveller and the public. Of course, it cannot be pretended that an act or omission in building or maintaining a road might constitute a private nuisance which the person aggrieved would have a right to enter and abate, and at the same time that he could have no action to recover the damages occasioned him thereby. If, therefore, the decision in Ball v. Winchester rests at all on the proposition that the towns owe no duties in respect of their highways except to the traveller as such, I think the case is so far clearly overruled by Groton v. Haines, and cannot be regarded as the law.

The doctrine of this opinion is thoroughly established in Massachusetts; Perry v. Worcester, 6 Gray, 544; Parker v. Lowell, 11 Gray, 353; Sprague v. Worcester, 13 Gray, 193; Emery v. Lowell, 104 Mass. 13; also in Vermont, in Haynes v. Burlington, 38 Vt. 350, where may be found a very clear and forcible opinion by Poland, C. J. See, also, New York v. Furze, 3 Hill, 612; Stone v. Augusta, 46 Me. 127. An extremely elaborate and satisfactory discussion of the English cases by Blackburn, J., may be found in The Mersey Docks Trustees v. Gibbs, Law Rep. 1 H. L. 93. See, also, a very full and careful examination of many cases bearing more or less directly on the subject, by Smith, J., in Eaton v. B. C. & M. R. R. 51 N. H. 504.

The rule to be observed in the assessment of damages is quite another matter, and is not before us. But the fact that great care and circumspection will be necessary to discriminate between such damage as must be held to have been compensated by the original award, and such as forms the legal basis of a recovery in a suit like this, makes no difference with the legal principle to be applied in deciding upon the demurrer.

CUSHING, C. J. The subject of the duties and liabilities of municipal corporations, as applied to towns in this state, was discussed in Ball v. Winchester, 32 N. H. 435; Eastman v. Meredith, 36 N. H. 284; and Groton v. Haines, 36 N. H. 388.

Vol. II.]

GILMAN V. LACONIA.

[No. 8.

In Ball v. Winchester, the complaint was that a highway surveyor had raised an embankment for the purpose of turning the water into a culvert which he had placed across the highway; that, the culvert being too small, the water ran over the embankment so that it ran down, united with other water, and ran further down to an older culvert which the town had permitted to become stopped up, and there, for want of a sufficient culvert, had flowed back and flooded the plaintiff's warehouse. Here were in point of fact two causes of the injury, - an embankment and insufficient culvert, alleged to have been improperly erected by the surveyor, and another culvert permitted to become stopped by the negligence of the town.

These two causes of action were described in the declaration, that of the embankment being described in the second count, and the obstructed culvert in the first and third counts, and the allegation in each count was for permitting the highway to become defective and out of repair. The court held that the plaintiff could not recover on either of his counts, in order to which, as I understand it, it was necessary to hold not only that the town could not be made liable for the negligence of the surveyor, but, also, in regard to its keeping its highways in repair, the town owed no duty excepting that imposed upon it by statute in favor of those persons who had occasion to use the highway; and it was held that the plaintiff could not recover. The doctrine was broadly stated that ordinarily a town owed no duties except those imposed upon it by statute.

It should be noticed that in this case the cause of action stated was negligence in suffering the highway to be out of repair, and not the erecting and maintaining a nuisance.

In Eastman v. Meredith the same general doctrine was maintained, and the plaintiff there failed in his action, it being held by the court that even admitting the public duty of the town to furnish a town hall for the holding of town meetings, still, the statute had imposed no duty in regard to private individuals which could be the subject matter of an action.

In the course of his opinion, however, the learned chief justice alluded to and perhaps recognized a class of cases in which municipal corporations, by reason of their ownership of property from which they derived a profit, or of being allowed some privilege, assumed or were subjected to certain liabilities in regard to private persons.

He also alluded to another class of cases in which a municipal corporation might perform its recognized duties in such way as either by negligence or otherwise to invade the rights of individuals, and so become liable to an action at common law. In the course of his opinion he says: "In several of the cases cited for the plaintiff, cities and towns have been held liable for private injuries done by them in the course of executing works which they were by law authorized to perform. In Scott v. The Mayor and Aldermen of Manchester, 37 Law & Eq. 495, by the carelessness of workmen whom the defendants employed in laying gas-pipes, a piece of metal was thrown into the plaintiff's eye, and the city was held to be liable. So, in Delmonico v. The Mayor, &c. of New York, 1 Sanford, 222, an action was maintained for damage suffered by the plaintiff from the negligence of the defendants in the process of constructing a sewer. The remarks of the court in Anthony v. Adams, 1 Met. 285, are

Vol. II.]

GILMAN V. LACONIA.

[No. 8.

to the point, that an action may be maintained against a town in such a

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And further on he says: "So if a town or city maintain an erection or structure which is a private nuisance, and causes a special damage, or in the performance of an authorized act, invade any right of property, the corporation has been held liable to a civil action. Thayer v. Boston, 19 Pick. 511; Akron v. McComb, 18 Ohio, 229; Rhodes v. Cleveland, 10 Ohio, 159. If the defendants in the present case had laid and maintained the foundations of their town-house across a stream, and caused the water to flow back on the plaintiff's land, according to these authorities they would have been liable to an action for the damage."

I do not understand that the learned chief justice intimates any disapprobation of this doctrine.

In the case of Groton v. Haines, 36 N. H. 388, the same court, the same learned judge delivering the opinion, held that a town has no right, in the execution of its duty in building and maintaining a highway, unnecessarily to obstruct a watercourse, to the damage of riparian owners. He says in the course of his opinion: "The defendant, then, had a right to a suitable culvert to convey the water in this watercourse across the road, and it was the duty of the town, or the officers of the town, to provide and maintain it for him; and when the culvert was filled up and stopped by neglect of that duty, it was a nuisance, which caused the plaintiff a private and individual damage, and, on general principles, he had a right to remove it himself, in a proper manner, doing no unnecessary damage. No complaint is made that he proceeded without due notice. He called on the surveyor to do his duty, which he neglected."

The cause of action, therefore, which is the subject of complaint in the plaintiff's writ, is, according to this authority, a nuisance, which the plaintiff might lawfully abate, and for which, according to the authorities cited by Perley, C. J., in Eastman v. Meredith, and apparently with approbation, an action at common law may be maintained.

The action, however, would technically be case for erecting and maintaining a nuisance, and not an action for negligence in suffering a highway to be defective.

Čonsidered in this point of view, the judgment in Ball v. Winchester, was perhaps technically correct, the action not being case for maintaining a nuisance, but case for negligently permitting the highway to be defective and out of repair, although the broad doctrine laid down in that case seems hardly consistent with the case of Groton v. Haines. I am therefore of opinion, that, both on sound principle and the doctrine of Eastman v. Meredith, and Groton v. Haines, and cases cited, this action may be maintained, although it may be technically necessary for the plaintiff to amend his declaration.

SMITH, J. concurred.

Demurrer overruled.

VOL. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

SUPREME COURT OF PENNSYLVANIA.

(To appear in 26 P. F. Smith.)

RAILROAD.

NEGLIGENCE.

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[No. 8.

- DUTY OF PERSON IN APPROACHING CROSSING. - PRESUMPTIONS IN RESPECT OF PROPER CARE.

PENNSYLVANIA RAILROAD CO. v. WEBER.

1. Weber, driving a horse and light wagon over a railroad on the crossing of a country road, was killed by a locomotive moving on the railroad. There was no express testimony as to whether he stopped and looked and listened before going on the railroad. Held, that the question of his negligence was for the jury.

2. It is the duty of a traveller to stop and look and listen before crossing a railroad; not so doing is negligence in itself.

3. The presumption, in the absence of other evidence, is, that the traveller stops and looks and listens before crossing a railroad.

4. In an action against a railroad company for injuring such traveller, the burden is on the defendants to disprove care, unless the plaintiff's own evidence shows contributory negligence.

5. Although from the uncontradicted evidence in this case it might have been inferred that, if the traveller had stopped and looked and listened, he would have seen the approaching train, it was for the jury to determine the fact.

THIS was an action on the case, brought to January term, 1870, of the court below, by Sarah Ann Weber, widow, and Margaret Weber and others, children of George H. Weber, deceased, against the Pennsylvania Railroad Company. The cause of action, as set out in the declaration, was that the defendants, by carelessness and negligence in running their cars on their road, caused the death of Weber, on the 28th of August, 1869, at a public crossing by a county road.

The cause had been tried before, and a verdict for $2,500 rendered for the plaintiffs. On a writ of error, the judgment on this verdict was reversed by the supreme court (22 P. F. Smith, 27).

The deceased was a baker, living at Duncannon, in Perry County, and carried bread, cakes, &c., for sale, in a one-horse wagon, to Marysville, about six miles east of Duncannon. He went three times a week, and had been doing so for about eighteen months. He travelled on the county road; which is alongside the railroad, and crosses it several times between the two towns. On the 28th of August, 1868, he was crossing the railroad from the south on the public road, in a "spring wagon" with one horse, the curtains being rolled up, when his wagon was struck by the locomotive of the "Harrisburg Accommodation" train, belonging to the plaintiffs, going east; his horse was killed immediately, and himself so badly hurt that he died in a very short time.

The crossing is the third east from Cove station, about a mile and a half from that station, and is about 110 feet from the end of a stone wall built on the south side of the railroad; the wall is 1,117 feet in length, extending westwardly. Until within 400 feet of the crossing, the county road is below the grade of the railroad; it then ascends a hill, and afterwards descends, at a grade of six degrees, to a level twenty-five feet from the railroad track, and passes on this level over to the northern side of the

Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

[No. 8.

railroad. The whistling-post on the railroad was 1,230 feet west from the crossing where Weber's wagon was struck. The stone wall on the railroad, and the increased noise from the rolling of cars passing between the walls have the effect of drowning the sound of the whistle.

The principal question in the case was as to the contributory negligenee of the deceased.

The case was tried the second time, May 6, 1873, before Junkin, P. J. M. H. Foos, for the plaintiffs, testified that he was a passenger on the train his attention was arrested, after leaving Cove Station, by a sharp whistle and a sudden stoppage of the train, about 200 yards east of the crossing; he looked out and saw part of the wagon hanging on the engine; he got out and saw the horse lying on the north side of the road, and Weber on the pilot under the head-light; he was not then dead, but was dead when the train reached Marysville, about a mile and a half from the crossing. Witness remembered no other whistling just before the accident occurred. A. Kauffman, who was a laborer for the company, testified that he was working on the road about a quarter of a mile east of the crossing, around a curve, so that he could not see the crossing; he heard one blast of the whistle about the time of the accident; but had not heard any more. He went up to the crossing and found Weber lying on the pilot, dying.

A. Ensminger, also a laborer of defendants, testified that he was working 300 or 400 yards east from the crossing; he saw Weber passing westwardly with his horse and wagon; "after a young man, Alfred Priesler (who was working with witness), had bought cakes from Weber, we started right away to work again. I was working with my face eastward, stooping down tamping a tie, and I heard a sharp whistle; I turned around and looked up the road, and I saw the engine strike the wagon and horse." Witness did not hear any other whistling about that time; he was busy at work and paid no attention.

P. Deitz, who was working with Ensminger, testified that he saw Weber passing with his wagon westwardly; witness and Priesler bought cakes from him, and they then went back to work; Weber started on; "I heard a whistle; I looked up; says I, 'There goes the baker;' this whistle was at the time the baker was going on; the train and Weber were approaching each other at the time.' Witness did not take notice of the train till he looked up; and did not hear any other whistle or warning than the one he had mentioned. "I was frightened lest the Dutch baker should get injured."

D. Rife testified that he had assisted in making measurements at and near the crossing; a person standing on foot in the county road before coming to the crossing, and 21 feet from the south rail of the south track, could see an engine coming 601 feet from the middle of the crossing; at 27 feet the smoke-stack of the engine could be seen 214 feet.

Eli Branyan testified that he was in company with Rife when these measurements were made; that, standing 21 feet from the track, the engine was just one minute coming to the crossing from where the smokestack was first seen; and one half minute when standing at 27 feet from the track; the trains he saw were long freight trains.

J. B. Hackett, a surveyor, testified that, from Marysville for the distance of 2 miles, 246 rods westwardly, the county road crosses the railroad

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