The municipal corporation called the District of Columbia,
created by the Act of June 11, 1878, 18 Stat. 116, c. 337, is
subject to the same liability for injuries to individuals arising
from the negligence of its officers in maintaining in safe
condition, for the use of the public, the streets, avenues, alleys
and sidewalks of the City of Washington, as was the District under
the laws in force when the cause of action in
Barnes v.
District of Columbia, 91 U. S. 540,
arose.
Barnes v. District of Columbia, 91 U. S.
540, has never been questioned, and is again
affirmed.
Evidence that a medical man who had been in the habit of
contributing articles to scientific journals was unable to do so by
reason of injuries caused by a defect in a public street is
admissible in an action to recover damages from the municipality
without showing that he received compensation for the articles.
The admission of incompetent evidence at the trial below is no
cause for reversal if it could not possibly have prejudiced the
other party.
General objections at the trial below to the admission of
testimony, without indicating with distinctness the precise grounds
on which they are intended to rest, are without weight before the
appellate court.
The stenographic report of an oral opinion of the court below,
as reported by the reporter of that court, cannot be referred to to
control the record certified to this Court.
The charge of the court below correctly stated the rules of law
applicable to this case, and they are reduced to seven
propositions, by this Court in its opinion, and approved.
The case is stated in the opinion.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Page 136 U. S. 451
The question to be first considered is whether the District of
Columbia is under any circumstances liable in damages for personal
injuries resulting from the unsafe condition of the avenues,
streets, and sidewalks in the City of Washington. The charge of the
court below proceeded upon the ground that such liability existed.
The District contends here, as it did at the trial, for the
opposite view, and it insists that the question is not concluded by
the decision in
Barnes v. District of Columbia,
91 U. S. 540. The
argument in support of this proposition assumes that the relations
between the government of the District and the public have been so
materially changed by legislation enacted since the
Barnes
case that the principles therein announced have no application to
the present case. This suggestion renders it necessary to ascertain
precisely what was decided in the former case.
It arose under the Act approved February 21, 1871, 16 Stat. 419,
c. 62, creating the "District of Columbia" a body corporate for
municipal purposes, with power to contract and be contracted with,
to sue and be sued, to plead and be impleaded, to have a seal, and
to exercise all other powers of a municipal corporation not
inconsistent with the Constitution and laws of the United States or
with that act. Provision was made for the appointment by the
President, with the consent of the Senate, of a governor,
secretary, board of health, board of public works, and a
legislative assembly composed of two bodies, whose power of
legislation extended to all rightful subjects of legislation within
the District, consistent
Page 136 U. S. 452
with the Constitution of the United States and that act. The
streets, avenues, alleys, and sewers of Washington, together with
all other works entrusted to their charge by the legislative
assembly or by Congress, were placed under the entire control of
the board of public works, with authority to make all regulations
they deemed necessary for keeping them in repair. It was also
required to disburse
"upon their warrant all moneys appropriated by the United States
or the District of Columbia, or collected from property holders in
pursuance of law, for the improvements of streets, avenues, alleys,
and sewers, and roads and bridges,"
and to
"assess, in such manner as shall be prescribed by law, upon the
property adjoining, and to be specially benefited by the
improvements authorized by law and made by them, a reasonable
proportion of the cost of the improvement, not exceeding one-third
of such cost, which sum shall be collected as all other taxes are
collected."
It was contended in the
Barnes case that the board of
public works was not a department or subordinate agency of the
District of Columbia, but a federal commission, having exclusive
power to make such regulations as it deemed necessary for keeping
in repair the streets, avenues, alleys, sewers, roads, and bridges
committed to their control. This view was rejected by the Court.
Although that board was dependent upon both Congress and the
Legislative Assembly of the District, and was the hand and agent
both of the United States and of the District, it was held to be
the representative and a part of the municipal corporation created
by the act of 1871, and that its proceedings and acts in repairing
and improving public streets were the proceedings and acts of that
corporation. The District was held liable for the injury there
complained of upon the principle, which the Court declared to be
sound and supported by numerous and well considered adjudications
in this country and in England, that a municipal corporation, as
distinguished from a corporation organized for private gain, is
liable for injuries to individuals arising from negligence upon its
part in the construction of works which it was authorized to
construct and maintain. And it was expressly
Page 136 U. S. 453
declared that it was not of the slightest consequence, in
principle, by what means the officers of the District were
"placed in their position, whether they are elected by the
people of the municipality or appointed by the President or a
governor. The people are the recognized source of all authority,
state and municipal, and to this authority it must come at last,
whether immediately or by a circuitous process."
91 U.S.
91 U. S.
545.
Has there been any such change in the government established for
this District as will take the present case out of the rule
announced in the
Barnes case? In the revision of the
statutes relating to the District, the clause of the act of 1871
declaring the District of Columbia (Rev.Stat.Dist.Col. p. 2, § 2)
to be a body corporate for municipal purposes, with power to
contract, etc., was retained. By the Act of June 20, 1874, for the
government of the District, and for other purposes, 18 Stat. 116,
c. 337, previous statutes providing for the District a governor,
secretary, legislative assembly, board of public works, and a
delegate in Congress were repealed, and all the power and authority
then vested in the governor and board of public works, except as
limited by that act, were vested in a commission composed of three
persons, to be appointed by the President with the consent of the
Senate. But by the Act of June 11, 1878, 20 Stat. 102, c. 180, a
permanent form of government for the District was established. It
provided that "The District of Columbia shall remain and continue a
municipal corporation, as provided in section two of the Revised
Statutes relating to said District," and that the commissioners
therein provided for should "be deemed and taken as officers of
such corporation." Those commissioners, consisting of two persons,
to be appointed by the President, with the consent of the Senate,
and an officer of the engineer corps detailed for that purpose,
were vested with all the powers, rights, duties, and privileges,
and all the property, estate, and effects, then lawfully exercised
by and vested in the commissioners of the District, including the
power, among others, to apply the taxes or other revenues of the
District to the payment of its current expenses, the support of the
public schools, the fire
Page 136 U. S. 454
department, and the police, but making no contract, nor
incurring any obligation, other than such as were provided in that
act, and should be approved by Congress; to collect taxes
theretofore lawfully assessed and due or to become due, but without
anticipation taxes by selling or hypothecating them; to abolish
offices, consolidate two or more offices, reduce the number of
employees, remove from office, and make appointments to any office
under them authorized by law, and to erect, light, and maintain
lamp posts, with lamps, beyond the city limits. §§ 1-3.
It was made their duty to submit annually to the Secretary of
the Treasury, for his examination and approval, a detailed
statement "of the work proposed to be undertaken by them" during
the then ensuing fiscal year and the estimated cost thereof, as
well as the cost of constructing, repairing, and maintaining all
bridges authorized by law across the Potomac and other streams
within the district, the cost of maintaining all public
institutions of charity, reformatories, and prisons then belonging
to, or supported in whole or in part by, the District, and the
expenses of the Washington Aqueduct and its appurtenances, together
with an itemized statement and estimate of the amount necessary to
defray the expenses of the District for the then ensuing fiscal
year. These estimates it be came the duty of the Secretary of the
Treasury to examine and approve or disapprove, or suggest such
change in them as the public interest demanded, the result to be
certified to the commissioners, who were required to transmit the
same, with the original estimates, to Congress. The act provided
that
"To the extent to which Congress shall approve of said
estimates, Congress shall appropriate the amount of fifty percentum
thereof, and the remaining fifty percentum of such approved
estimates shall be levied and assessed upon the taxable property
and privileges in said district other than the property of the
United States and of the District of Columbia."
§ 3.
It also provides that when any repairs of streets, avenues,
alleys, or sewers within the District are to be made, or when new
pavements are to be substituted in place of those worn
Page 136 U. S. 455
out, new ones laid, new streets opened, sewers built, or any
work the total cost of which shall exceed $1,000, the work shall be
given out upon advertisement, the lowest responsible bid to be
accepted by the commissioners, thought they have the right, in
their discretion, to reject all proposals made. It further provides
that the
"United States shall pay one-half of the cost of all work done
under the provisions of this [fifth] section, except that done by
the railway companies, which payment shall be credited as part of
the fifty percentum which the United States contributes toward the
expenses of the District of Columbia for that year, and all
payments shall be made by the Secretary of the Treasury on the
warrant or order of the commissioners of the District of Columbia,
or a majority thereof, in such amounts and at such times as they
may deem safe and proper in view of the progress of the work."
The act places the police, schools, board of health, and
sanitary inspectors of the District all under the charge and
control of the commissioners.
We have made this extended analysis of the provisions of the act
of 1878 because of the earnest contention of the counsel for the
defendant that, while the District of Columbia is still a municipal
corporation, under its present form of government, it has not, "as
a municipal corporation, the features involving it in the liability
under consideration." The reasons assigned by counsel for this
contention have been carefully considered, with the result that in
our judgment the municipal corporation created by the act of 1878
is subject to precisely the same liability for injuries to
individuals, arising from the negligence of the commissioners or of
the officers under them, in maintaining in safe condition for the
use of the public the streets, avenues, alleys, and sidewalks of
the City of Washington, as was the District under the laws in force
when the cause of action in the
Barnes case arose. It is
said that the present corporation, as a corporation, has nothing to
do with the streets. That could have been said with equal propriety
in reference to the old corporation, when the streets were under
the control and supervision of the board of public works. Yet that
board was held to be a part of the municipal
Page 136 U. S. 456
corporation. Its acts, within the scope of its powers, were
deemed the acts of the corporation. Its negligence in the care of
streets was held to be the negligence of the municipal corporation
of which it was a part. So in this case, the commissioners, having
full control of the streets, are under a duty to keep the public
ways of the city in such condition that they can be used with
reasonable safety. Their neglect in that matter is the neglect of
the municipal corporation, of which they are the responsible
representatives, although subject to the paramount authority of
Congress.
It is suggested that the District is without the means to
perform the supposed neglected duty; that none of its officers can
pay a judgment against it, and that no process against it could
enforce payment; that even a mandamus against it to levy a tax
would be futile, because neither the District nor the commissioners
can levy a tax for any purpose, and that no judgment against it can
be paid except by warrant upon the Treasury, pursuant to an
appropriation by Congress. We do not perceive that these
considerations materially affect the principle upon which the
decision in the
Barnes case rests. That streets, avenues,
pavements, sidewalks, and sewers in Washington are established,
repaired, and maintained in part by appropriations made by Congress
and in part by taxation upon private property does not change the
fact that by an express declaration of Congress, the District is
created a body corporate for municipal purposes. Because it was a
municipal corporation proper, as distinguished from a corporation
established as an agency of the government creating it, this Court
held in the
Barnes case that it was responsible for such
negligence of its officers having the care of streets, avenues, and
sidewalks as resulted in personal injuries to individuals. The
source from which the District obtains the means for maintaining
public highways in the city is of no consequence so long as
Congress has made it, and permits it to remain, a mere municipal
corporation, with such functions as pertain to municipal
corporations proper. This municipal feature was emphasized in
Metropolitan Railroad v. District of Columbia,
132 U. S. 1,
132 U. S. 7, where
it was said that the corporate capacity
Page 136 U. S. 457
and the corporate liabilities of the District remained as they
were before the act of 1878, and that its character as a mere
municipal corporation had not been changed. Having that character,
we held in that case that the District was subject to the ordinary
rules governing the law of procedure between private persons, and
was therefore embraced by the Maryland statute of limitations of
1715.
It is further said that the fee simple of the streets in the
City of Washington is in the United States, and that that fact is
entitled to great weight. This point was made in the
Barnes case and distinctly overruled. The Court there
said:
"We do not perceive that the circumstance that the fee of the
streets is in the United States, and not in the municipal
corporation, is material to the case. In most of the cities of this
country, the fee of the land belongs to the adjacent owner, and
upon the discontinuance of the street, the possession would revert
to him. The streets and avenues in Washington have been laid out by
competent authority. The power and the duty to repair them are
undoubted, and would not be different were the streets the absolute
property of the corporation. The only questions can be as to the
particular person or body by which the power shall be exercised,
and how far the liability of the city extends."
Without further discussion, we adjudge, upon the authority of
Barnes v. District of Columbia, that the District is
liable for such negligence upon the part of its officers as is
charged in the plaintiff's declaration. That case was determined in
1875, and has never been questioned by any subsequent decision in
this Court. On the contrary, its authority was recognized in
Metropolitan Railroad v. District of Columbia and in
Brown v. District of Columbia, 127 U.
S. 579,
127 U. S. 586,
and the principles announced in it were applied in
District of
Columbia v. McElligott, 117 U. S. 621. If
the rule announced in the
Barnes case is not satisfactory
to Congress, it can be abrogated by statute.
We proceed to examine the objections urged by the District to
the admission of evidence. The first one relates to the plaintiff's
testimony in reference to his contributions to medical
Page 136 U. S. 458
journals upon various medical subjects. At the trial below, he
gave evidence tending to show that at the time of the accident, he
was, and had been since 1864, a resident practicing physician of
Washington; that between eight and nine o'clock of the evening of
December 6, 1881, while walking with his sister on the south side
of G Street, between Fourteenth and Fifteenth Streets Northwest, he
stepped on a board covering a hole in the sidewalk adjoining the
Riggs House, and, the board breaking or bending, he fell into the
hole underneath it, was severely and permanently injured, and his
ability to prosecute his studies and to pursue his profession
greatly impaired. While under examination in chief, his counsel
propounded to him this question:
"State, doctor, if you please, whether or not you had at that
time, or prior to the time of this accident, been a contributor to
any medical journal of this country or abroad -- the old country --
of any articles or essays on diseases known to the profession."
To this question the plaintiff answered:
"I have been for years a regular contributor in the Philadelphia
Medical Times; also to the Virginia Journal, a medical monthly
published in Richmond, and other journals."
The defendant at the time objected to the question and answer,
but, the objections being overruled, it excepted to the ruling of
the court. At a subsequent stage of the trial, the plaintiff, being
recalled as a witness in his own behalf, offered to prove that he
had in his possession certain written articles for medical journals
and medical works on obstetrics and gynecology, and that he had
been quoted as an authority upon certain subjects, to which the
defendant objected, but the court overruled the defendant's
objection, and permitted said testimony to be given, as
follows:
"Atkinson's Therapeutics of Gynecology and Obstetrics, and
Wood's Library Minor Surgical Gynecology, by Paul F. Munde [which
books were produced and examined by the witness before the jury]
are textbooks in the medical profession, and that on pages 73 and
140 of said first-named book were articles written by himself, or
reference made to him, and also at 217 of the last book referred
to; also that in the Virginia Medical Monthly for August, 1876,
there
Page 136 U. S. 459
is an article by the plaintiff on the therapeutic use of certain
remedies, and also in the American Journal of Obstetrics there is
an article by plaintiff on the 'Application of Nitric Acid in
Endocervicitis and Endometritis,' and also a translation of one of
plaintiff's articles in a French journal, entitled 'Annales de
Gynecologie,' in April 1875, and also in a French journal, 'The
Review of Medical and Surgical Therapeutics,' of May, 1875."
To the action of the court in overruling the defendant's
objection, and permitting this testimony to be given, and to the
testimony itself, the defendant excepted.
This evidence was competent upon the issue as to damages. It
indicated the nature of the plaintiff's pursuits, and, in
connection with other evidence showing the serious and permanent
character of the injuries received by him, that his capacity to
prosecute his studies and to follow his ordinary pursuits was
impaired. The defendant insists that the evidence should have been
rejected because it did not appear that the plaintiff had derived
any income from his contributions to medical journals. This is not
a sound view of the question. Even if those contributions were made
without compensation, his inability to continue them by reason of
the injuries in question was a proper element in the inquiry as to
damages. That fact tended to show the extent of both his mental and
physical suffering resulting from the injuries received. All
evidence tending to show the character of his ordinary pursuits,
and the extent to which the injury complained of prevented him from
following those pursuits, was pertinent to the issues.
Wade v. Leroy,
20 How. 34;
Nebraska City v.
Campbell, 2 Black 590;
Vicksburg &c.
Railroad Co. v. Putnam, 118 U. S. 545,
118 U. S. 554;
City of Ripon v. Bittel, 30 Wis. 614;
Ballou v.
Farnum, 11 Allen 73;
Caldwell v. Murphy, 1 Duer 233.
The authorities all agree that in cases of this character much
latitude must be given to juries in estimating the damages
sustained by the person injured. Physical suffering resulting from
such injuries is necessarily attended by mental suffering in a
greater or less degree, and as said in
Kennon v. Gilmer,
131 U. S. 22,
131 U. S.
26-27:
"The action is for an injury to the person
Page 136 U. S. 460
of an intelligent being, and when the injury, whether caused by
willfulness or by negligence, produces mental as well as bodily
anguish and suffering, . . . it is impossible to exclude the mental
suffering in estimating the extent of the personal injury for which
compensation is to be awarded."
Railroad Co. v.
Barron, 5 Wall. 90,
72 U. S. 105;
Penn & Ohio Canal Co. v. Graham, 63 Penn.St. 290;
Smith v. Holcomb, 99 Mass. 552;
Holyoke v. Grand Trunk
Railway, 48 N.H. 541;
Stockton v. Frey, 4 Gill 406;
Smith v. Overby, 30 Ga. 241;
Cox v. Vanderkleed,
21 Ind. 164;
Lynch v. Knight, 9 H.L.Cas. 577.
The next objection to the admission of evidence relates to a
certain entry in the books of the Adams Express Company in
reference to the dead light placed at the hole into which plaintiff
fell. It should be stated in this connection that there was
evidence before the jury on behalf of the plaintiff tending to show
that the sidewalk where the accident happened was torn up for the
purpose of putting in a new boiler for the Riggs House; that after
the boiler had been set and the wall around it bricked up, a hole
was left for the purpose of putting in a dead light; that before
the dead light (in the procuring of which there was some delay) was
put in place, the hole was covered by a board that was kept there
for fifteen or eighteen days before the dead light was put in,
which was not done until after the accident in question; that on
the top of the boiler was a safety valve that required the
attention of the engineer; that before the hole was covered or the
boiler set, the engineer, in order to reach the safety valve, would
take off the board cover and go down, and that there was no
attachment to the boards from below to prevent them from sliding,
but they were nailed together by two cleats. There was also
evidence tending to show that the boards constituted a reasonably
sufficient covering for the hole. C. E. Luckett, a witness for the
plaintiff, testified that he was a clerk in the Adams Express
Company in Washington, and its agent at Georgetown in November and
December, 1881; that he had the company's book of delivery for
those months; that the entries in it under date of November 29,
1881, are in his
Page 136 U. S. 461
handwriting, were made by him in the regular course of business
for which the book was kept, and that on that date there is an
entry in the book of a delivery to Beckham & Middleton; that he
did not in person deliver the article mentioned to that firm, his
duty being to write up the driver's book, check off the way-bills
that came in, and do all the clerical work of the office, and that
the company's driver delivered the article referred to, taking the
book with him, the book produced by witness being the one that the
driver had. At this point of the witness' testimony in chief, he
was asked "whether the book shows that this thing was received on
the 29th of November." The question was objected to, and the
objection overruled. The witness answered: "It was." To this ruling
of the court as to the question and answer the defendant excepted.
It was also in proof, in behalf of the plaintiff, by Middleton, of
the firm of Beckham & Middleton, that on the book of the Adams
Express Company referred to by Luckett (and shown to the witness)
appeared his signature under this entry, of date November 29, 1881:
"1 casting, Beckham & Middleton; amount of charges, $1.60;
Beckham & Middleton;" that the casting referred to was ordered
from New York for Hutchins, who put in the boiler, and that no
other casting was delivered to him by witness or his firm during
November or December, 1881. To this evidence, when offered, the
defendant objected, but the objection was overruled, and it
excepted.
The principal object of this evidence in reference to the dead
light was to show when it was placed at the hole. We will not stop
to consider whether a proper foundation was laid for the use of the
above entry as evidence in itself, for it was otherwise in proof,
and not questioned, that the dead light was not placed in position
until after the plaintiff had fallen into the hole, and that the
hole was unguarded by such a light for some time prior to the
accident. The point which concerned the District was the length of
time during which the hole was left unguarded by a dead light or
other sufficient signal, and not whether Beckham & Middleton,
as between themselves and Hutchins, were negligent in not procuring
the
Page 136 U. S. 462
dead light sooner or in not delivering it more promptly than was
done after it reached their hands. If the entry in the books of the
express company was incompetent as evidence, in itself, of the
facts stated in it, its use before the jury could not possibly have
prejudiced the defendant.
We will add that the objections made by the District to the
evidence in relation to the plaintiff's contributions to medical
journals, as well as to the entry upon the books of the express
company, lose much of their force because they did not indicate
with distinctness the precise grounds upon which they were intended
to rest. Such general objections were well calculated to embarrass
the court and put it at disadvantage in its conduct of the trial.
It was entitled to know the grounds of the objection, so that the
jury could be put in possession of the real case to be tried. In
Camden v.
Doremus, 3 How. 515,
44 U. S. 530,
this Court declined to consider objections made to the admission of
evidence which did not state the grounds upon which they were made,
and did not obviously cover the competency of such evidence, nor
point to some definite and specific defect in its character. "We
must," the Court said, "consider objections of this character as
vague and nugatory, and, if entitled to weight anywhere, certainly
as without weight before an appellate court." To the same effect
are
Burton v.
Driggs, 20 Wall. 125,
87 U. S. 133;
Patrick v. Graham, 132 U. S. 627,
132 U. S. 629.
This rule is especially applicable in actions like the present one,
in which no fixed rule can be prescribed for measuring the amount
of damages, and in which the result must, of necessity, depend upon
the good sense and sound discretion of the jury, as controlled by
the special circumstances of the case.
At the close of the testimony on behalf of the plaintiff, the
defendant asked the court to instruct the jury that the evidence
did not show a case entitling the plaintiff to recover. The court
refused to so instruct the jury. The defendant, having closed its
evidence, made numerous requests for instructions, each one of
which was refused, and it excepted.
The charge of Mr. Justice Cox to the jury covered every possible
view of the case as made by the evidence. While it is too lengthy
to be here inserted, it will be proper to state
Page 136 U. S. 463
the general principles of law which the jury were instructed to
observe in their determination of the case. Those principles
(preserving, as far as possible, the language of the charge) were
as follows:
1. The District government, as a municipal corporation, is
charged with the duty of supervising the streets of Washington and
keeping them in a condition fit for convenient use and safe against
accident to travelers using them. But it is not under an absolute
obligation to respond for every accident a man may suffer in its
streets. It is simply bound to practice due care and diligence in
the exercise of its powers and in the application of its resources
toward the objects named. If due care is once exercised and,
notwithstanding, an accident occurs and somebody is injured, it is
the misfortune of the victim, and not the fault of the authorities.
If its duty has been fully performed in regard to any particular
street, and that street has been put in good condition, safe
against all accidents that could be foreseen and provided for, and
afterwards, by some casualty, it falls into dilapidation and
becomes dangerous -- as, for instance, by the caving in of a sewer
-- and then an accident happens, the rule is that the District
government is not responsible for the injury that results unless it
had timely notice of the dangerous condition of the street, so that
it could be put in repair and the danger obviated. This notice is
either actual or constructive, the latter meaning that the District
authorities, within the scope of their opportunities and money,
being under an obligation to exercise a general supervision of the
streets and to keep themselves informed about their condition, if a
street remains in a dangerous condition so long that the
authorities could not help, in the exercise of ordinary care and
diligence, knowing that fact, and did not know it because they
failed to exercise proper vigilance, then the law imputes notice to
them -- in other words, they have notice, in contemplation of law,
and that is constructive notice.
2. No certain duration of a dangerous condition of a public
highway operates of itself as a notice. The law does not require
impossibilities of any person, natural or artificial, and
Page 136 U. S. 464
it is impossible that all parts of all the streets should be
under constant inspection. Consequently it could not be maintained
that at the instant an accident happens to a highway, the
authorities are charged with notice, and held liable therefor if
they do not put it instantly in repair. Every such case must be
determined by its peculiar circumstances. The District would not be
responsible for damages arising from the bad condition of a street
unless actual notice was brought to them of the condition of the
street or unless the street remained in an unsafe condition so long
that they ought to have known of it if they exercised ordinary
care.
3. People must build houses, and in order to do that it is
necessary to excavate for cellars and areas, if needed, and to dig
trenches to connect with the water mains, gas pipes, and sewers.
Nobody has a right to do this without a permit from the
authorities, and, if any person undertakes to do it without a
permit, he would be responsible for any injury resulting; but the
District would not be, unless it had the notice already spoken of.
If a permit is granted, as is usually the case, the fact is notice
to the authorities that the work is in progress, and then they are
charged with the duty of seeing that it is properly conducted.
4. These works are necessarily dangerous to life and limb, and
it is the duty of a person doing the work to protect it against
accident to travelers on the street, and the duty of a private
person is very much the same as that of the district itself when it
is prosecuting an improvement. If a private individual fails to
protect the excavation or hole or whatever it may be, it is the
duty of the district authorities to see that it is protected, and
they are held responsible that he shall do it, for they were
notified that he was going on with the work when he obtained his
permit. If the individual himself supplies the protection against
danger, then the duty will have been discharged on his part, and
that of the District also will have been discharged, just the same
as in the case of the works being constructed by itself. If, then,
by any unforeseen accident or the act of somebody that could not be
anticipated, the protection has been removed and new danger
supervenes, of course, the law about notice applies.
Page 136 U. S. 465
5. The first question for the jury was a delicate and difficult
one -- namely, whether in the first instance a sufficient
protection was provided to guard the public against accident. A
mortar-board was placed over the hole and extended several inches
beyond the edges, and was the protection relied upon. If there
never was an adequate protection provided in the first instance,
then the duty of the builder never was fulfilled, and it would not
make the slightest difference whether it became a little more
dangerous by the displacement of the cover afterwards or not, and
the question of the notice about this displacement would not arise
at all. If it was an adequate protection in the first instance,
then comes the question of notice of subsequent change.
6. It was for the jury to decide whether the boards placed over
the hole be sufficient to sustain the weight of an ordinary man
traveling over them. It is not only necessary that the protection
should be sufficient to sustain the weight of persons passing
along, but another element is the security of the covering in its
place over the hole to sustain the weight of a heavy man walking
over it. If it would be liable to be kicked out of place by persons
passing along, it might not be deemed an adequate protection. But
that was for the jury to decide. They must decide whether it was
sufficient to sustain the weight of a person passing over it, and
whether it was sufficiently secured, either by artificial
appliances or by its own inherent weight, to hold it in its proper
place. It was not necessary that the board placed over the hole
should have been made absolutely safe against all interference, for
no barrier or other safeguard could be put there which could not be
removed by some force, but only that it should be safe against the
consequences of the ordinary use of the street -- such
contingencies as might fairly have been anticipated and foreseen.
If it was such a precaution as proper care, diligence, and
foresight ought to have provided for, and the accident was not
occasioned by any defect in the original appliance provided there,
but that it was subsequently, by some unforeseen occurrence or
agency, or the exertion of some individual, moved from its place,
and thereby
Page 136 U. S. 466
made dangerous, then the above rules as to notice will apply.
The burden is on the plaintiff to prove either that the thing was
originally dangerous or had become so long enough before the
accident for the authorities to have known it, so as to impose upon
them the obligation to put it in proper condition.
In regard to the amount of damages, the court said:
"The rule laid down in the instructions asked on the part of the
plaintiff is to the effect that the plaintiff is entitled to
recover, if he is entitled to recover at all, for his loss of time,
the expenditure of money made necessary by his injury, and
compensation for his suffering in body and mind, and his whole
condition and prospects are to be considered, in case you find a
verdict in his favor. It is impossible for me to say what the
compensation should be, as there is no mathematical rule by which
his losses can be estimated, and it is a matter for sound judgment
in this as in all cases."
As to so much of the charge as instructed the jury that it was
to be presumed that a permit had been given by the defendant for
doing the work in the sidewalk of the street, and to so much as
related to the liability of the defendant incident to and
consequent upon such permit, the defendant excepted.
In reference to the entire charge to the jury, it is unnecessary
to say more than that it correctly stated the rules of law
applicable to the case. It omitted nothing that ought to have been
said, and contained nothing that was inconsistent with the
principles announced in
Barnes v. District of Columbia or
that was not in harmony with the established rules of evidence. We
will not extend this opinion by comments upon the instructions
asked by the defendant, for the charge to the jury covered all the
issues and gave in clear language the whole law applicable to the
case.
It is also assigned for error that the court below, in general
term, refused to consider that one of the grounds for a new trial
which stated that the verdict was against the weight of the
evidence, thereby, it is contended, disregarding the rule announced
in
Metropolitan Railroad v. Moore, 121
U. S. 561. It is attempted to support this assignment by
referring to the
Page 136 U. S. 467
stenographic report of the oral opinion of Mr. Justice Hagner,
speaking for the general term. It is to be found in 5 Mackey 127,
143. This report cannot control the record of the case as certified
to us. It does not appear from the record that the general term
declined to pass upon any question which it was its duty to
consider. This objection is therefore without any basis upon which
to rest.
Upon the whole case, we are of opinion that no error of law was
committed by the court below, and the judgment must be
Affirmed.