Staunton spectator. [volume] (Staunton, Va.) 1849-1896, 1885-01-28

the case of Mann vs.. The City of Staun
tOn." On the trial of the case, the Git.
Attorney entered demurrer to the evi
dence and the jury rendered verdict o
$3.50 damages. The demurrer is sustained
and the Plaintiff is to recover nothing IN
der the verdict rendered
WIN. A. MANN. Plaintiff, JUDGMENT
OF
THE CITY OF STANTON: Derr. THE COURT.
The facts, proven in this case, are few, simple
and briefly these: That in 1873 the Common
Council, of the City of Stanton enacted {
Fire works Ordinance, prohibiting the explo
sion OF squibs. fire-cracker., &C., in The public
streets and alleys, which they afterwards tenn
porariy suspended from O'Clock, P. M, o
Monday, December 2An, 1888 until sunrise or
| Wednesday, December z6th, 1873. That thu
Plaintiff, in company with his daughter. CANT
| to Staunton on the evening of Dec. 9Th. 1888
and desiring to return home the next morning
Christmas day. was advised that owing to thu
uproar and noise ON the streets occasioned by
the explosion of fl re-crack ers and squibs show
to have been then going on, it would be unsafe
on account of fright to the horse attached tt
the buggy, in which he and his daughter were
to travel, for him TO attempt 10 return to hi.
home in the country before the hour of clever
O'Clock, A. M, of that day, Xmas, 1888. THAI
! Plaintiff waited until after eleven, and then
out of precaution. took a back unfrequentee
1 street, Int ending to pass square across Angus
Ia street, but while passing along, and while
| still in. Irish Alley at a point therein only 6
few yards distant from the intersection of the
Alley with Augusta street, he noticed young
colored man boy, with d lighted cannon
cracker in his hand, whom he implored, fol
| Gods sake, not to explo ode ii and Brighten The
horse attached 10 The buggy II. y, i:ch he and
his daughter then were but, that 4 cspito his
! request, the man Or BOY, at once threw and ex-
pioded the cracker al, and in the face of his
| horse. who becoming greatly alarmed. the i'm
| mediate and direct result was, the smashing
ofthe dasher and two wheels of his buggy, a
very serious sprain and long continued person
al injury to himself besides great impairment
in the value of his hitherto highly valuable
and gentle horse. to say nothing of the terrible
nervous shock to his daughter constituting
| injuries of aggregate damages laid in the dec
laration, at the modest sum OF $500, while in
point of fact, in the Judgment of this Court
the damages sustained were fully double. il
| not treble, that amount.
But the city of Staunton, defendant, taking
the evidence, against which demurrer the
| plaintiff contends-that under the law as ex-
pounded in Virginia Noble & wife VS.. the city
of Richmond, 81 Graf, 27D the city, III accept
| ing Its charter, though the statute is silent
| nevertheless assumed by implication the obli-
CATION of keeping its streets in proper and
safe condition, and that if it fails so to do it is
| liable tc any individual for damages occa-
| stoned thereby; that such liability is based
| upon duty, growing out of special advantages
derived from its charter, coupled with its pow
| er over its streets, and its right to abate all
| public nuisances, fire cracker explosions in
cluded; that such power in respect of keep.
| Ing Its streets in proper and safe condition
| Is duty and mandatory power, for which a
MandamCs would lie and not disc etionary
power. which the City may exercise. Temporal
rily suspend. or wholly omit, according to its
own volition; that the throwing of the fire.
crackers in the public streets on the Christmas
| of 1888 was Public Nuisance, of which the
| defendant City had notice, for that it had sus-
| pended its ordinance against the same, and in
| SO doing, had encouraged and in fact invited
| the occurrence of said public nuisance, but fol-
| which the injury would not have happened to
| the plaintiff.
| The question at once arises Is the explosion
of fire-crackers,-in the public streets, at long
Intervals, on rare occasions, such as Christmas
days,-necessarily a Public Nuisance al
Common Law. and if so, is it public nuisance
of such description. that the PLAINTIFF can main.
tain this action against the city?
nuisance in its popular sense, is anything
that annoys; but, in its legal sense, it involves
the violation OF right, either public or priv. te
| besides damage occasioned thereby, and is ap
| pned, by the profession, to that class of wrong
that arise from tn ,.reasonAble. Gnwsrrant.
4 anil lIlfE frTft71 ,
property, real or personal. or from his own i'm
| proper. Indecent or unlawful personal conduct
working an obstruction OF, or injury to, d RICH
of another, or of the public, and producing suct
material annoyance. Inconvenience, discom-
fort or hurt. that the law Will presume conse
| qnsnt damage.
so far as public nuisances, of which alone VIZ
| speak, are concerned, they are understood by
| the profession TO embrace that large class O
| non felonious offences against public right.
| embracing great variety OF subjects toucnius
| the moral welfare, health, convenience anc
comfort, OF the public as distinguished from
ike Offences which, affecting ouly few indi
| Vlduals, are not matters of criminal piosecu
| ton. These public nuisance crimes, however
| which are punishable on information or indict
ment, are, for the ~ )st part, those small of
| iencts not usually amounting to breach o
| The peace, ard are classified as follows |
| Nuisances of personal department, such as beiD.
| a common drunkard, scold, brawler caves
| dropper. false newsmoager and the like: II
| Offences to religion such as working on Sunday
| long and continuous swearing i n public plac
or street and the like. III. Offences to publ
decency and morals such as exposure of HI
nude person in public street or thoroughfare
| oaWdy houses. disorderly houses, tpplin,
| houses, scandalous games. obscene literature
| and prints and the like; ". Offences to life O
health in general, such as loud noises at night
disturbing the sleep of the communicates
posture OF person having small. pox, or hors
| having CHAMBERS, in public street or thorough
| fare, Or exposure for sale therein of decay e,
meat and the like and; V. Distractions to pub
lie streams, highways and streets which will b
presently considered.
But paasins here fJr moment, and remem
beriDg that all the offences above enumerate,
are real, gen ine, and admitted Public Nuisan
ces, many. indeed most of them, materially at
fecting personal safety on the streets, and ali @
them within the chartered power of the city t.
aoate and prevent, the question is presented
whether in case an individual should sustain
special damage, on the streets of This town
| from coming in contact with smallpox O
| Siahuefsi or from having purchased on tn
street spoiled meat, or from a stab at the hand
of common druukard-would or would no
the city--whether she bad. or had not motto
of such puolic nuisance, and whether 81 did
nruid not. use her charter - proven
| it-be liable to a civil action sounding In dam.
| age therefor. After most careful ard ss or
ough search of al accessible text-bo,ks and
| reports bearing on the subject, have been TN.
able TO find single precedent or dictum up.
| holding, or even squirting towards, the posi-
| bility of the city's liability in any OF those
| supposed cases. Ard the reason is plain, a:
| will afterwards appear.
The sole and only ground upon which any
Court in this country, in the absence of e X
press legislation, has fastened on City pecu
| mary liability to an individual fyr injury
sustained by reason of a street obstruc
ton, is that the city, being vested with full
| powers to lay out, construct, grade, improve
and repair her streets, for her own special ad
vantage, the supreme power or the Common
wealth having thereby released its powers IL
| the matters Of such CONSERVATION i,nprove