CHAPTER XXII. INJURY TO PERSONAL SECURITY-WHILE TRAVELING IN ROADS AND STREETS BY EXCAVATION, OBSTRUCTION OR OBSTACLE. 300. Negligence and nuisance distinguished-With reference to wrongs of excavation, obstruction, etc. § 301. Highways and streets-Their purposes-Injury to use of— Regulation of use. 302. Same-Control over highways and streets-Liability of county or municipality. § 303. § 304. § 305. § 306. § 307. § 308. § 309. § 310. § 311. Liability of municipalities further specially considered. Liability of municipality when it makes independent con- Excavations in streets. Excavations-Nature of the legal duty and wrong. Same continued-Excavations in and other uses of streets without authority. Delays from crowded condition of streets. Incidental uses of streets-Temporary obstructions in construction of buildings. Authority for excavations, when given. § 312. Excavations or obstructions made by individuals for private purposes, under a license. § 313. Liability of municipality for ice on the sidewalk. § 300. Negligence and Nuisance Distinguished-With Reference to Wrongs of Excavation, Obstruction, etc.There are some injuries caused by neglect of duty in which the line of demarcation between the wrong of negligence and nuisance is shadowy and obscure, and the courts are sometimes troubled in distinguishing the same. Each wrong arises from the failure to observe care under the particular circumstances, the distinction being mainly that nuisance arises from continued neglect, or from a series of acts of neglect or omission to act, with respect to the care and condition of property. The maintenance of any nuisance implies negligence, or worse. Annoyances with respect to highways, streets, and bridges may be either positive, by actual obstruction, or negative, by want of reparation. Any failure to keep a safe highway implies negligence, but it is only necessary to state the facts showing the injury from which the negligence is inferred, it not being essential to the statement of the wrong that the word "neglect" or "negligence" should be used. Negligence, generally speaking, is the omission to use due care, which may be a positive or negative act, while nuisance is the condition arising from such failure which endangers the safety of person or property. An apt illustration and a very instructive case is found in Village of Cardington v. Fredericks, 46 Ohio St. 442, where it was held "that an action against an incorporated village founded upon a petition alleging in substance that a street much used by the citizens and the public was so unskillfully and negligently constructed and left by the defendant as to be in an unsafe and dangerous condition, and allowed to become out of repair and obstructed by the rubbish and refuse of the village, so that it was highly dangerous," etc., states a case the gist of which is nuisance, and not negligence. At common law, any obstruction which unnecessarily incommodes or impedes the lawful use of a highway by the public is a nuisance.1 A man may lawfully use a public highway in the transaction of his legiti mate business either for travel or for transportation; but it is common law and common sense that he must 1 4 Blackstone's Commentaries, 167; Commonwealth v. Milliman, 13 Serg. & R. 404; Commonwealth v. Allen, 148 Pa. St. 358, 33 Am. St. Rep. 830, 23 Atl. 1115. use it in a reasonable manner, and not interfere with its reasonable use by other citizens; and whether a particular use is an unreasonable use and a nuisance is a question of fact to be submitted to a jury.2 The wrongs treated in this chapter will be either of nuisance or negligence, generally the former. § 301. Highways and Streets-Their Purposes-Injury to Use of Regulation of Use.-Highways and streets are necessities in every civilized community. They are created for the public good for the purposes of traveling and transporting goods. The highways are established by the state which has full power to regulate their use, but it may delegate this power of control over streets to municipalities. All persons have the right to use public highways in a lawful manner for lawful purposes, and a wrong results if such use is interfered with in some manner. This may occur in various ways, as by "negligence of other travelers," treated elsewhere, or by excavations, obstructions or obstacles, the latter of which is the subject of this chapter. Being established for the public good, the highways are subject to the control of the state legislature so far as concerns the manner of their use.* This power may of necessity be delegated to municipal corporations. While the primary and fundamental object of all public highways is to furnish a 5 3 2 Id.; Allegheny v. Zimmerman, 95 Pa. St. 287, 40 Am. Rep. 649. 8 Ante, c. 21. 4 Hoey v. Gilroy, 129 N. Y. 133, 29 N. E. 85; Perry v. New Orleans R. R. Co., 55 Ala. 413, 28 Am. Rep. 740; Cushing v. Boston, 128 Mass. 330, 35 Am. Rep. 383; Dubach v. Hannibal etc. R. R. Co., 89 Mo. 483, 1 S. W. 86; Reading v. Commonwealth, 11 Pa. St. 196, 51 Am. Dec. 534; West v. Brown, 114 Ala. 118, 21 South. 452. 5 Hoey v. Gilroy, 129 N. Y. 133, 29 N. E. 85; West v. Brown, 114 Ala. 118, 21 South. 452; Merchants' etc. Wire Co. v. Chicago etc. Ry. Co., 70 Iowa, 105, 28 N. W. 494; People v. Squire, 107 N. Y. 593, 1 Am. St. Rep. 893, 14 N. E. 820. passageway for travelers on vehicle and on foot, and though they were originally designed for the use of travelers alone, yet in the interest of the general prosperity and comfort of the public, they have been put, especially in large cities, to numerous other uses, though such uses have always been held to be subordinate to the original design and use. They have been appropriated for the reception of sewers, waterpipes, gas-pipes, pipes for heating and manufacturing purposes, underground railroads, trenches for wires for telegraph, telephone and other purposes, which all require in their construction the disruption of their pavements, excavations, and obstruction, and the temporary interruption, at least, of the rights of travelers in the public highways. Excavations in connection with buildings are of frequent occurrence. Questions of liability arising from these matters depend of course upon who owes the duty of supervisory control over the highways and streets, and by whom the excavation is made or obstruction maintained. 6 § 302. Same-Control Over Highways and Streets— Liability of County or Municipality.-As stated previously, the state and municipality have the power of regulation of highways and streets respectively. Having the power to regulate, the duty of the care and maintenance likewise rests upon the same authority. The direct representatives of the sovereignty, the county and township, owe the duty of keeping up and maintaining country highways, including bridges, but there is no liability for dereliction of duty on their part unless made so by statute. It is different as to municipalities, it being their duty to keep their streets in a safe condition for public travel, which duty is 6 Ante, sec. 103. 7 Ante, sec. 97. absolute. They are bound to exercise reasonable diligence and care to accomplish that end. The streets are at all times under the care and supervision of the municipality, and there can be no legal exemption by reason of having granted a privilege or franchise to another to make certain uses of the city, because it is charged with the duty at all times and under all circumstances of keeping the streets and highways under its control free from nuisance. The application of the same rule would render a county liable under similar circumstances in those states where there is a statute making the county liable.9 § 303. Liability of Municipalities Further Specially Considered. In speaking of streets, it is understood that sidewalks are included, as that is the legal effect of the word "street."10 Streets are subject to such improvement and alterations as the legislative authority may prescribe, in which a due regard is to be had to individual as well as public interests. Sometimes an equivalent must be rendered for the sacrifice of private property. Where property is appropriated, the fee remains in the abutting owner, and the public acquire merely an easement therein. No matter whether appropriated or dedicated absolutely the interest of the public to the free and unrestricted passage is the same. A public street may be applied to all purposes which are not subversive of its proper use, nor inconsistent with the uses contemplated in 8 City of Zanesville v. Fannan, 53 Ohio St. 605, 53 Am. St. Rep. 664, 42 N. E. 703; Dillon on Municipal Corporations, sec. 1037; Sides v. Portsmouth, 59 N. H. 24; Scranton v. Catterson, 94 Pa. St. 202; Turner v. Newburgh, 109 N. Y. 301, 4 Am. St. Rep. 453, 16 N. E. 344. 9 See ante, sec. 97; Eyler v. Commissioners, 49 Md. 257, 33 Am. Rep. 249. 10 Bonnet v. San Francisco, 65 Cal. 230, 3 Pac. 815; Clifford v. Dam, 81 N. Y. 52; Jones on Municipal Negligence, sec. 70. |