Wolff v. District of Columbia/Opinion of the Court

The first contention of plaintiff in error is that the stone was an unlawful obstruction per se. This is deduced as a consequence from § 222 of the Revised Statutes of the District of Columbia, which reads as follows:

'No open space, public reservation, or other public ground in the city of Washington, nor any portion of the public streets or avenues in said city, shall be occupied by any private person or for any private purpose whatever.'

This section cannot be construed to prohibit putting upon a street any object without regard to its effect on the use of the street. The sweeping character of such a construction need not be pointed out. There are objects which subserve the use of streets, and cannot be considered obstructions to them, although some portion of their apace may be occupied. This is illustrated by a number of cases.

In Dubois v. Kingston, 102 N. Y. 219, 55 Am. Rep. 804, 6 N. E. 273, a stepping stone 3 feet 4 inches in length and 20 inches wide was placed on the edge of the sidewalk. The court observed that the stone was not of unusual size or located in an improper place, and that it would be extending the liability of cities too far to hold them liable for permitting stepping stones on the edge of sidewalks.

Robert v. Powell, 168 N. Y. 411, 55 L. R. A. 775, 85 Am. St. Rep. 673, 61 N. E. 699, was also an action for injuries caused by a stepping stone. The court said: 'There are some objects which may be placed in, or exist in, a public street, such as water hydrants, hitching posts, telegraph poles, awning posts, or stepping stones, such as the one described in this case, which cannot be held to constitute a nuisance. They are in some respects incidental to the proper use of the street as a public highway. . . . The stepping stone in this case, located upon the sidestone walk in front of a private house, was a reasonable and necessary use of the street, not only for the convenience of the owner of the house, but for other persons who desired to visit or enter the house for business or other lawful purposes.'

It was further remarked: 'The question involved in this class of cases is whether an object complained of is usual, reasonable, or necessary in the use of the street by the owner of the premises, or anyone else.'

Cincinnati v. Fleischer, 63 Ohio St. 229, 234, 58 N. E. 568, 569, also passed upon a city's liability for the existence of a stepping stone upon a sidewalk. The court said: 'It [the stone] was within that portion of the street by the curb, which, according to common knowledge, is devoted to carriage blocks, lamps, hitching posts, and shade trees, which pedestrians of ordinary care observe and avoid.' And Elster v. Springfield, 49 Ohio St. 82, 96, 30 N. E. 274, was quoted, to the effect that 'the laying of sewers, like that of gas and water pipes, beneath the soil, and the erection of lamps and hitching posts, etc., upon the surface, is a street use, sanctioned as such by their obvious purpose and long-continued usage.'

It was held in Macomber v. Taunton, 100 Mass. 255, that a hitching post was not a defect in the highway for which the city was liable for permitting it to remain.

Plaintiff in error cites Scranton v. Catterson, 94 Pa. 203, and Davis v. Austin, 22 Tex. Civ. App. 460, 54 S. W. 927.

In the first case an iron water plug in the middle of a street, and projecting above its surface, was held to be a nuisance. Obviously, the case is not in point. The second case sustains the contention of plaintiff in error, but cannot be followed against the authority and reasoning of the other cases.

2. The second contention of plaintiff in error is that it was the duty of the District of Columbia to so light the street as to show the presence of the stone thereon, the District having full knowledge thereof. This duty is made to rest mainly upon § 233 of the Revised Statutes of the District of Columbia, which is as follows:

'The proper authorities are directed to increase, from time to time, as the public good may require, the number of street lamps on any of the streets, lanes, alleys, public ways, and grounds in the city of Washington, and to do any and all things pertaining to the well lighting of the city.'

This, in one sense, is but another form of the first contention. The duty of a city to especially illuminate a place where an object is, or to put a policeman on guard by it to warn pedestrians, depends upon the object being an unlawful obstruction.

The plaintiff in error can claim nothing from the general duty of the city under the statute to light the streets. The exercise of such duty was necessarily a matter of judgment and discretion, depending upon considerations which this record does not exhibit.

Judgment affirmed.