St. Martinsville v. The Steamer Mary Lewis, 32 La Ann., 1293-95, the court decide against the right of the municipality to erect wharves and charge wharfage, and say: "The power to exact tolls is a restraint upon the freedom of navigation and is liable to abuse; and the corporation seeking to enforce such exaction must present a clear legislative authority for the purpose."

public highway, and on ground on either side which the Messrs. Walker claimed and which they agreed the borough might take for the wharf. These strips of ground so given by the Walkers, respectively, cannot exceed twenty feet in width and probably are considerably less. They were a contribution to the wharf by the Walkers in lieu of a money subscription. If they ever executed a deed to the borough it has not been produced or its contents proved. In this connection it is but proper to state that there is evidence that before the construction of the wharf all the ground within its lines was freely used by the public. It is further shown that along its entire water front the wharf extends out into the river, at least from ten to fifteen feet, beyond the low water line.

This precise question, so far as I know, has never been considered by the Supreme Court of Pennsylvania; but in Huntingdon, etc., Turnpike Co. v. Brown, 2 P. & W., 462, 464, that court treating of the subject of tolls collectible by a turnpike company, after declaring turnpike roads to be public highways, say: "And it is the franchise of the citizen to use them free of every restriction that is not explicitly imposed by the Legislature." In Perrine v. From the established facts my conclusion is Chesapeake & D. Canal Co., 9 How., 192, the that the claim of the borough to wharfage based Supreme Court of the United States applied the on its alleged riparian ownership cannot be same doctrine to a canal built by an incorpo- | maintained. The only part of the land emrated company. The principle is undoubtedly braced in the wharf, to which the borough can applicable to a public wharf, for when a high- assert any sort of title, are the two narrow strips way upon the land connects with a public river, on either side of Market street donated by the to pass from the one highway to the other is Walkers. But under the proofs that transaca public common right: Fowler v. Mott, 19 tion looks to me like a simple dedication of the Barb., 204. ground by the Walkers to the public for the purpose of a wharf. But if not, and the borough is invested with the ownership, this fact, it seems to me, is insufficient to sustain the claim of the borough, for several reasons:-First, it is the settled law of Pennsylvania that on navigable streams, such as the Monongahela river, the title of the riparian owner extends only to the ordinary low water line: Wainwright v. McCullough, 63 Pa. St., 66; Poor v. McClure, 77 Id., 214. The title to the bed of the river is in the Commonwealth for the use of the whole community: Ibid.; and the riparian owner has no right to erect a wharf beyond low water | mark: Naglee v. Ingersoll, 7 Pa. St., 185, 201; Tinicum Fishiny Co. v. Carter, 61 Id., 31; and the title to the structure so located follows the title to the bed of the river: Ibid. In the second place, the wharf in the main is constructed upon the public street, and the incorporation into it by the borough, of the two small pieces of ground in question, does not deprive the wharf of its public character. Accessorium non ducit, sed sequitur suum principale. Finally, the steam-boat "Geneva" merely touched at the wharf to receive or discharge passengers and cargo, and it is not affirmatively shown that she used anything but the mouth of the street. Let a decree be drawn dismissing the libel with costs.

That it is competent for the Legislature of a State to authorize a municipal corporation to demand tolls from those engaged in commerce for the use of a public wharf is settled; but the privilege being in derogation of common right the municipality claiming it must show a plain legislative grant of the franchise. I am of opinion that the borough of Elizabeth has not been invested by the Legislature with such authority. (2.) But where a municipal corporation is a riparian proprietor, its right to charge wharfage has been judicially recognized: Murphy v. City of Montgomery, 11 Ala., 586-9; Dillon on Mun. Cor., 72; Cannon v. New Orleans, 20 Wal., 577. The second inquiry, therefore, is whether upon this ground the claim of the borough can be sustained.

The wharf at Elizabeth was constructed by the borough in 1847 or 1848 and the cost defrayed in part out of borough funds and in part by private subscriptions. It is located at the foot or mouth of Market street, which street the evidence shows extends to the Monongahela river. Mr. Diehl, who was a member of the town council when the wharf was built and chairman of the construction committee, testifies that Market street at this place is sixty feet in width. He also states that at the river-bluff the wharf is about sixty feet wide and at low water line it is from eighty to one hundred feet in width. The wharf is constructed on Market street, a

For libellant, J. M. Nevin, Esq.
For respondent, D. T. Watson, Esq.

Municipal corporations are only bound to exercise reasonable and proper care as to their sidewalks, and if

the rain falls and frost follows and the sidewalks become slippery they are not required to immediately

make them safe to walk upon.

The law imposes the duty of keeping highways in a safe condition for travelers; but not in a condition of such absolute safety as would preclude the possibility of

Second. If you believe that plaintiff was hurt in consequence of his unnecessarily choosing the left hand side, and (upon meeting the two witnesses, Willoughby and Clever), deviating from the traveled portion of the sidewalk so as to meet with a tree box, or other obstruction lawfully standing there, his fall cannot be attributed to any negligence on the part of the city, and your verdict should be for defendant. Answer. This point is refused. If the jury should find that plaintiff had a reasonable cause for digressing from the plain and open sidewalk

accident or injury, which would be wholly impracti- by reason of its being slippery or unsafe, he is

cable.

Where one diverges from the ordinary traveled portion of a sidewalk, and undertakes to pass along such part as is ordinarily taken up with gas pipes, stepping stones, tree boxes, hydrants, hitching posts, and such other obstructions as are common and usual on the

edge of the sidewalk, he must exercise a greater degree of caution to prevent accidents than if he were on the usually traveled portion of the walk, and if he

not prevented from recovering because he chose the left hand side rather than the other, and by reason thereof met with this accident.

But, on the other hand, where one diverges from the ordinarily traveled portion of a sidewalk such as this is, and undertakes, for whatever reason, to pass along such part as is ordi

fails to do so, and by want of such care and caution narily taken up with gas pipes, stepping stones,

he comes in contact with something that reasonable observation would have enabled him to see and avoid, and is injured, the law will not allow him to recover. Negligence-Measure of damages.

tree boxes, hydrants, hitching posts, or such other obstructions as are common and usual on such portion of the sidewalk, he must take more care and exercise a greater degree of cau

Error to the Court of Common Pleas, No. 1, tion to protect himself from accident, by comof Allegheny county.

ing in contact with such obstructions, than if he was upon the usually traveled portion of the walk, and if he fails to do so, and by want of such care and caution comes into contact with

have enabled him to see and avoid, and is injured, the law will not allow him to recover. The charge of the court was as follows: GENTLEMEN OF THE JURY:

instruct you on the measure of damages.

This was an action on the case by Edward Gilliam against the city of Allegheny to recover damages for injuries sustained by the plaintff occasioned by his falling upon a slippery side-something that reasonable observation would walk in the early part of February, 1878. The declaration charged negligence upon the city (1) in permitting snow and ice to remain on and cover the sidewalk in front of City Hall, so that it became too smooth and slippery for the For fear I may forget it hereafter I will comcitizens and travelers to walk on in their ordi-mence where the plaintiff's counsel left off and nary and usual manner; (2) in allowing a stake | or post about three feet high to remain in said The law allows in cases of this kind compensidewalk, about two to three feet inside the satory damages-the expense a party has been curb-stone, whereby plaintiff was compelled, in put to by the happening of an accident. If he order to avoid the said ice on the center of said has been prevented from attending to his busipavement, to travel along the eastern (outer) | ness, has had to get some one else to attend to side thereof, and in so doing without negli- it, as in this case, it is a matter to be considered. gence, tripped on and fell over the said stake or If compelled to employ physicians their proper post. Not guilty was pleaded. After plaintiff's fees are to be allowed. If he has to employ a evidence was in, and after a nonsuit had been nurse or nurses that expense is to be allowed; asked for, inter alia, because of variance in the or if the nursing is done by members of his own description of the stake he was allowed, against family where the injury would have justified defendant's objection, to amend "by setting the employment of nurses if the family had not forth that in falling the plaintiff fell on a stake | been present or able to nurse him, a reasonable

sum may be allowed, and I think where it is done by a daughter, as in this case, it ought to be liberal in view of what would be the ordinary compensation. Then you allow another expense necessitated by the accident. For instance, as in this case, if the plaintiff had to employ, after he returned to his store, some one to manage it for him or to do that which he would ordinarily have done himself, that expense should be allowed.

ble for the injury as to be liable in damages at all.

Now we come to the main matter in the case on which the plaintiff's right to recover at all is based, and here I may say we must keep the plaintiff down to the cause of action he proves. This old gentleman in the exercise of the right he and everybody else has was going down Federal street in Allegheny on, I believe, the night of the 11th of February, 1878. He got along safely until near or in front of the center entrance to City Hall. It had been raining and freezing apparently; at all events he says,— and the evidence of the other witnesses would indicate that that was the probability; the evidence of one or two witnesses is, that the sidewalks were very slippery on that evening. He says he found it very difficult to get along without slipping and falling-perhaps dangerous. He then, instead of keeping along the center of the walk which was abundantly wide-at least eleven feet of clear way between the fence and the trees-took the outside of it and was walking upon the snow, which we all know is a very safe way of getting along. He saw these two young men, who were coming from their work, approaching—and they concur in his testimony as to the sidewalk being very slippery; they had to walk on the edge of the curb as far as they could to protect themselves from fallingand he in a very proper and gentlemanly way yielded the right of way apparently to them, stepped to one side and in that way, it is alleged, got out of the direct line of the main pathway near the curb, stumbled over a stake and fell and hurt himself. That is the case alleged in the declaration, and that is the case the jury must hold the plaintiff to have proven, because, if he fell from slipperiness of the pave

Then we come to another matter mentioned by counsel and that is compensation for pain and suffering, and when we have said that we have said about all that we can say, except that the jury should be reasonable in their allowance. This man undoubtedly suffered great pain-no man could be injured as he was without suffering pain—and you may give for that whatever you think just and reasonable. Every man may have his own idea upon the subject. For my own part I cannot conceive of any amount of money that would induce me to undergo the sufferings many men have to undergo every day of their lives; no amount of money would induce me to have my ribs broken as this man's were and take his chances of life; but if they were broken and under such circumstances as would create a right of action against somebody, the fact that I would not have it done for all the money in the bank of Pittsburgh would be no criterion for a jury. This injury has been, and now there ought to be something, and something fair and reasonable allowed to him for the suffering he has undergone and something as against the party that brought about this injury by their own improper conduct to compel them to put things in such shape that an accident will not fall upon somebody else in the same way. You have got to look at it by way of compensationment and fell upon this stake and hurt himself and by way of punishment to the party who brings about such an accident, and I don't think it is a rule we can be goverened by, any one of us, either judge or jury, to ask ourselves how much we would take and undergo this suffering. As I have said, I would not do it on any consideration, fixed as I am. If I was otherwise fixed, if I was so poor I didn't know where to look for bread, I might be willing to undergo a good deal of pain for a reasonable amount of money, and therefore my own views are a very poor criterion, and yet after all you have got to bring the thing home to yourselves as near as you can and just say in view of all these facts what would be fair and reasonable to allow this man for the suffering he has under-diately make them safe to walk upon. gone in view of the act that brought it about, assuming that the defendant was so responsi

in that way, instead of stumbling over the stake and hurt himself by falling to the ground, the plaintiff cannot recover in this action; you must hold him down to the fact that he stumbled over a stake and fell and hurt himself, and for this reason: the city might be liable in damages for having a stake there such as is claimed by the plaintiff in one part of the case, was there, and not liable for the condition the sidewalk was in, because, as you will find hereafter, cities are not bound to do impossibilities, they are not insurers. They are only bound to exercise reasonable and proper care, and if the rain falls and frost follows and the sidewalks become slippery they are not required to imme

In this case, if the old gentleman had simply fallen upon the sidewalk by reason of its being

extraordinarily slippery and hurt himself, there could have been no recovery, because there is nothing to indicate that it could have been avoided by reasonable care on the part of the officers of the city or by ordinary prudence on their part. If you don't find that he fell over some stake, substantially as detailed by the plaintiff's witnesses, he has failed to make out his case.

Then you come to the controversy between the plaintiff's and defendant's witnesses. The plaintiff says he fell over a stake-a locust stake they all represent it to be. Some of his witnesses, if not all, say that there were three stakes there which had probably been used to screw a tree box to. On the other hand, the city officials who have been called swear that there was no such thing there as a vacant place for a tree box; in other words, there was no place where a tree could have been taken up no place such as described by the plaintiff's witnesses.

accident. That is to say if he was excusable in getting off the center or the ordinarily traveled portion of the walk because it was so slippery there was danger of his falling, and going to the side he did, and you think if he had taken the other part he wouldn't have fallen and certainly wouldn't have tripped, but going the way he did, tripped and without any negligence on his part, fell and hurt himself, he is not to be precluded by that fact from recovering. He had a right to leave the center of the sidewalk, and because he may have taken a way that brought this injury upon him when, if he had taken the other way the injury would not have occurred, would not prevent a recovery.

But, on the other hand, when one diverges from the ordinary traveled portion of a sidewalk and undertakes for whatever reason to pass along such part as is ordinarily taken up with gas pipes (I mean the projections where they turn off the gas from the street) sticking up one, two, three and four inches; frequently stepping stones, tree boxes, hydrants, hitching posts, and such other obstructions as are common and usual on the edge of the sidewalk he must take more care and exercise a greater degree of caution to prevent accidents than if he was on the usually traveled portion of the walk, and if he fails to do so, and by want of such care and caution he comes in contact with something that reasonable observation would have enabled him to see and avoid, and is injured, the law will not allow him to recover. Men going along well established sidewalks on parts ordinarily traveled in a city are not bound to be watching their toes. They have a right to as

The first question for you to determine is, were there any stakes there such as substantially described by the plaintiff and his witnesses over which the plaintiff fell? If there were then you have to go further and inquire whether being there, under the circumstances, it was negligence on the part of the city officials, and if so, whether the plaintiff was walking with due care? If the evidence don't fully satisfy you that the stakes were there, or one of them, and he fell over it, your verdict should be for the defendant. You must also determine whether he was reasonably excusable in going out of the main portion of the sidewalk that was perfectly safe, getting onto another part that was gener-sume the pavement is in reasonably good travally obstructed by hitching posts, tree boxes and other things-whether or not going on that part of the sidewalk knowing-as he was bound to know, and everybody about the city is bound to know that there may be something there that is different from the main portion of the sidewalk was the exercise of reasonable care or was a want of care, such want of care as would contribute to bring about the injury-contributed to it in such way as to prevent a recovery. [The court here read and answered the points submitted by counsel.]

If the jury should find that the plaintiff had a reasonable cause for digressing from the plain and open sidewalk by reason of its being slippery or unsafe, as he says, and as the evidence, I am very free to say, to my mind, would indicate that he had, but that of course is for the jury, he is not prevented from recovering, because he chose the left hand side rather than the other and by reason thereof met with this

eling order and therefore are not held to the vigilance of watching every step. But as I have said, if one goes onto that portion of the walk which is apparently obstructed or is likely to be, he has got to exercise a greater degree of care; he can't go on as he would in the middle of the walk, and if he does and is hurt, neither the city nor the owner of the property is liable. The duty imposed on cities is to keep their ways safe and convenient for travelers. In the performance of this duty they are not bound to exercise the highest care, the most cautious and watchful vigilance, but they are bound to exercise ordinary care considering the nature and particular circumstances of the case. The law imposes the duty of keeping highways in a safe condition for travelers. Not in a condition of such absolute safety as precludes the possibilty of accident or injury. This would be wholly impracticable.

Counsel for the defendant except to the charge

Verdict in favor of the plaintiff for the sum of $300 and judgment thereon.

of the court and at his instance bill of exceptions claims he had against Ormerod, including the sealed. judgment in controversy, that to be a settlement in full of all claims each had against the other. At the following term of Court Dearman was consequently discharged by consent of the district attorney, a settlement having been made with complainants. Dearman at this time was ill, and continued to grow worse till he died, being utterly unfit to attend to any business in the interval.

Defendant then took this writ, assigning for error the answers to the points above mentioned, and also portions of the general charge.

For plaintiff in error, W. B. Rodgers, Esq.
Contra, Robert Pollock, Esq.

PER CURIAM. Filed October 23, 1882.
This case was properly submitted to the jury
on the evidence. There was an evident lapsus
linguæ in the charge, in telling the jury that
they should look at it by way of compensation
and by way of punishment, for it was clearly
not a case for vindictive damages. When the
learned judge comes to state the measure he
does it rightly, and from the moderate verdict
it is clear the jury must have been governed
by it.
Judgment affirmed.

ORMEROD v. DEARMAN.

Contracts which have for their subject-matter any interference with the creation of laws or their due en

forcement are contrary to public policy, and cannot be enforced.

A court of law will not enforce a contract by which an attorney at law undertakes for a contingent fee to procure the settlement of a criminal charge of fornication with a married woman.

Error to the Court of Common Pleas of Tioga county.

The plaintiff asked the court to instruct the jury, inter alia, as follows: That the charge against Dearman, proposed to be settled by the alleged contract, constituted a criminal offense against the law, and therefore not susceptible of settlement. The most that could be accomplished in such a case would be to induce the prosecutor not to appear and prosecute, and the alleged agreement in this case to pay for such services is void, as being against the policy of the law, and cannot be enforced, and the plaintiff is therefore entitled to recover. Affirmed. Exception.

The court instructed the jury to find a verdict for plaintiff, which was accordingly rendered, and judgment was subsequently entered thereon. Defendant thereupon took this writ, assigning for error, inter alia, the affirmance of plaintiff's point.

For plaintiff in error, J. B. Niles, Esq.
Contra, M. F. Elliott, Esq.

Assumpsit, by Albert Dearman, administrator of Justus Dearman, deceased, against Johning the plaintiff's fifth point withdrew the case Ormerod on a promissory note made by defendant to plaintiff's decedent for $2,000 with power to confess judgment, judgment had been entered up on the note, but was afterwards opened and defendant let into a defense.

On the trial, before WILLIAMS, P. J., the following facts appeared: Justus Dearman was arrested in August, 1880, and held for his appearance to answer the charge of violating the internal revenue laws. In the following October he was again arrested on the complaint of one Crandall, charged with fornication with Crandall's wife, and bail was entered for his appearance at the following term of court. John Ormerod, the defendant, was at this time his confidential attorney and friend, and for three years previous to the arrest had been doing business for Dearman, for which no settlement had been had between them. Soon after Dearman's arrest on the fornication charge, he agreed with Ormerod that if the latter would effect a settlement of that charge without cost to Dearman, he, Dearman, would receipt all

Opinion by PAXSON, J. Filed October 2, 1882. The learned judge of the court below in affirmfrom the jury. The said point is as follows: "That the charge against J. Dearman, proposed to be settled by the alleged contract, constituted a criminal offense against the law, and therefore not susceptible of settlement. The most that could be accomplished in such a case would be to induce the prosecutor not to appear and prosecute, and the alleged agreement in this case to pay for such services is void, as being against the policy of the law, and cannot be enforced, and the plaintiff is therefore entitled to recover."

The offense with which the plaintiff below was charged was that of fornication. The woman with whom it was alleged he committed said offense was married, and the settlement was made with her husband. The defendant, who is an attorney, alleges that the plaintiff agreed to give him a contingent fee of $2,000, provided he could succeed in settling the matter so as to avoid a prosecution.

We need not discuss so much of the ruling of the learned judge as holds that an offense of