
    William McGill vs. The District of Columbia.
    Law. No. 22,891.
    Decided May 25, 1885.
    Justices Cox, Jajíes and Merrick sitting.
    1. Since the decision of the Supreme Court of the United States in Barnes rs. The District, 91 U. S., 540, the liability of the District for an accident, happening by reason of any neglect of duty in the control, management, custody and care of the streets, is no longer an open question in this court. Nor have the modifications which have been made in respect of the administration of the city, and of the mode of collecting taxes, at all changed the principles of liability established by that case.
    2. Counsel for defendant, in his address to the jury, admitted that, under the instructions of the court previously granted, the only question for the jury to consider was that of damages. He afterwards excepted to the' charge of the court on the ground that it confined the jury to that question. Held, That it was not competent for him, in the face of his formal admission for the purposes of the cause, to take exception to the charge of the court for thus limiting the mind of the jury to that which he himself, as the representative of the defendant, admitted was the only subject matter for iheir consideration.
    8. The law requires all areas in the city of Washington to be protected by-iron or stone railing, with an allowance of four feet for an opening or entrance. The property in question had an area along its entire front, but it was protected by no railing of any sort. The plaintiff slipped and fell into the area, injuring himself seriously. On an action for damages it was held, no defence that the plaintiff fell into the area at a point where the opening or entrance would have been had a railing been erected.
    STATEMENT OR-THE CASE.
    This was an action brought against the District of Columbia to recover damages for injuries received in consequence of a fall into an open area in front of premises No, 60Y Seventh street, N. W., in the city of Washington.
    The declaration was as follows;
    
      “ The plaintiff sues the defendant, a municipal corporation created by law, for that whereas the defendant as such municipality was, on the 20th day of December, 1880, and for many years prior thereto, and has ever since been, and now is, charged by law, among other things, with the duty of keeping or causing the sidewalks of the city of Washington to be kept free from obstructions and from open vaults, basements, cellars and areas below the grade of said sidewalks, unless protected by sufficient railings or balustrade, so that all citizens of the said District, and all others having occasion thereto, might safely traverse and pass on upon said sidewalks on foot without the hazard of injury from falling into such unguarded openings in the sidewalks aforesaid; yet, notwithstanding the said duty and obligations on the part of the defendant, it wrongfully and negligently permitted an area of the length of 18 ft. 6 inches, and of the depth of 4 ft. 9 inches, and of the width from the building line of 6 ft. 10 inches, to be made in the sidewalk in front of the basement of the building known as No. 60*7, on the east side of Seventh street N. W., and immediately opposite the Department of the Interior, the said Seventh street N. W., being one of the most frequented thoroughfares, both for vehicles and pedestrians, in the said city of Washington, and the locality aforesaid being one of the most thronged parts of said street, and on the 20th day of December, 1880, and for a long time prior thereto, the said area was, and had been, by the carelessness and negligence of the defendant, permitted to be and remain without any railing or guard of any kind whatever, to the great hazard of persons passing thereby on foot; of which the defendant had notice; and on the day and year last aforesaid, the plaintiff, while passing along said sidewalk, in front of said area, and being partially blinded by the snow that was then falling, and without carelessness and negligence on his part, slipped upon the pavement and with great violence fell headforemost into said area, striking his head against the iron jam or cheek of the door to the basement of said building No. 60*7, and thereby causing a wound upon the top of his head four inches in length; in consequence of which injury erysipelas supervened, and he was dangerously sick and was confined to his bed from the said 20th day of December, 1880, until the 6th day of March, 1881, and at times during his said illness his life was despaired of. During all of said time, and until the present time, he has suffered great bodily pain; and, as a further consequence of said injury, the nerves on the right side of his head are completely paralyzed, and the muscles and tissues on the right side and back of his head are destroyed. He has no sense of feeling on the right side and back of his head. By reason of said injuries his health and capacity to earn a livelihood are greatly and permanently injured, and he is constantly liable to renewed attacks of erysipelas and to neuralgia. He has already expended about $800 for physicians, surgeons, medicines and attendance, and he will probably have a continuing necessity for similar expenditures so long as he lives.
    “ He claims $20,000 damages.”
    Issue being taken, the plaintiff, on the trial, offered evidence proving substantially the following facts:
    That the plaintiff, a resident of the District of Columbia, while passing along on the east side of Seventh street N. W. in the city of Washington, District of Columbia, at about 12 o’clock m. on the 20th day of December, 1880, during a snow storm, and when there was considerable ice on the pavement, slipped and fell down an area way in front of premises No. 607 Seventh street N. W., striking his head against the northern iron jamb of the doorway leading into the barber shop in said premises; that said area extended the entire width of said premises; that at the time it was blowing a gale of wind from the north, driving the snow in the plaintiff’s face; that he had no umbrella in his hand at the time, and that he was holding his head partially down to keep the snow out of his face; that there were six iron steps, extending the full width of the building, leading down into said area to the entrance of said barber shop; that the distance from the outer edge of the steps leading into said area to the building line was eight and a half feet, and the perpendicular depth of said area, four feet nine inches; that the distance from the outer edge of the steps to the outer edge of the pavement was seven and a half feet; that the basement of said building was occupied by a barber shop; that the plaintiff slipped and commenced to fall about a foot north of the northern iron jamb of said doorway of said barber shop, and that if he testified in the former trial that he fell just opposite the door of the barber shop, it was an inadvertance; and at the time of said accident there w.as no protection whatever about said area way, and that there had been no protection at said place for eight or ten years before said accident occurred; that since said accident a railing had been put around said area way with posts about four feet apart; that there is also at present an opening in said iron railing, so put for the protection of persons passing along said street, for the .purpose of egress and ingress to said barber shop; that the cause of the plaintiff’s falling was that his feet slipped, and also because some person either jostled against him or the plaintiff jostled against some one, and fell headforemost down said area way; that said street was thronged with people at the time, it being within a short time of the holidays; that the plaintiff was assisted from said place of accident to a drug store on the southeast corner of Seventh and F streets northwest, and after being there treated was taken home. That the injury received by the plaintiff consisted of a wound in his skull about an inch in depth and width, and that in consequence of such injury erysipelas supervened, and he was confined to his bed for a considerable time; that he has since said injury suffered from nervous prostration and neuralgia, which he had never been afflicted with prior to said accident; that he was put to some seven or eight hundred dollars’ expense on account of said injury for doctor’s bills, nurse, etc.
    Section 17 of the Building Regulations of the District of Columbia, as adopted by the Commissioners of the District, August 22, 1878, was then offered in evidence. The same being as follows:
    “Sec. 17. Areas must be protected by iron or stone railing at least forty-two inches in height; and where they extend the entire width of any lot frontage shall be protected by said railing with openings or gates four feet wide.”
    And thereupon the plaintiff rested.
    Whereupon the defendant offered testimony tending to show that the distance from the curb adjacent to the sidewalk in front of the building to the outside edge of the coping line around the area way was eleven feet six inches; and, further, that the plaintiff, at the former trial, testified that his feet slipped and that he fell right opposite the door of and at the entrance to the barber shop, striking his head against the northern jamb of the barber shop door, which is on the left as you go down into the area; that when he fell and struck his feet were inclined toward the street and up the steps.
    And thereupon the defendant rested.
    Whereupon the defendant moved the court to instruct the jury as follows:
    1. If the jury find from the evidence that the plaintiff fell opposite the door of the barber shop, where an opening for entrance to said shop was allowed by law, they must find a verdict for defendant.
    2. If the jury find from the evidence that the plaintiff fell opposite to the door of, and at the entrance to, the barber shop, they must find for the defendant, unless they further find from the evidence in the case that if the railing had been placed in front of the area, where required by law, that such railing would haye prevented the accident.
    3. If the jury believe from the evidence that the plaintiff fell opposite the entrance to the barber shop, at a point where the law permits an opening to exist in the railing for the protection of areas provided for by the building regulations, and that the accident would have happened if the area had been so protected, then the plaintiff is not entitled to recover.
    4. If .the jury believe from the evidence that the proximate cause of the injury to the "'plaintiff was his jostling, or being jostled by some other person, and .slipping and falling, in consequence, on the ice and snow, then the plaintiff is not entitled to recover.
    5. If the jury believe from the evidence that the plaintiff, while passing up Seventh street, and in front of the area complained of, was jostled against by some one, or he jostled against some one, and fell down said area at a point where the law permits an opening, and further find that said accident would not have happened but for said jostling, then the plaintiff is not entitled to recover.
    6. The present form of government of the District of Columbia, consisting, as it does, of officers who are all appointed and paid by the United States, without any power to levy taxes or spend money except as directed by Congress, is not of such a character as to make the District responsible in damages for any negligence of those officers.
    7. The present government of the District of Columbia having been imposed upon the people of the District, without any power or opportunity on the part of said people to accept or reject the same, the District cannot be held responsible for the negligence of said Government.
    8. If the care of the streets of the city of Washington, as a public duty, was imposed by statute upon the District of Columbia, the performance of which is for the general benefit, and the District derives no benefit from it, then no action can be maintained against the District for damages resulting from a neglect to perform such public duty.
    9. The District of Columbia, under the form of government existing at the time of the accident, which is the subject matter of this suit, is not liable for damages resulting from said accident.
    All of these instructions were refused, the defendant excepting. The court then instructed the jury as, follows:
    “Gentlemen: As alluded to by Mr. Miller in his remarks, the only question left in this case, under the instruction of the court, is the question of damage.
    “The general rule, when a man comes into court and claims damages in an action like this, is that the jury shall compensate him for the injury he has sustained. You are to weigh all things together, one against the other, and to decide what reasonably should be given to a person who has been injured in the way you find this man was injured, if you so find. What should be the amount you should allow? It is not a case for punitive or exemplary damages. Now, the grounds upon which the jury should act in this case in determining what should be the measure of compensation are these:
    
      “ First. There-is no proof here that this plaintiff lost any wages, or any deduction in his wages, on account of the accident. He was in a place at the time he was injured, and he is in a place still; he didn’t say that he lost his place or lost his' wages, and it was, I" think, a proper thing for the District to go on and pay him. Hence, you cannot guess that he lost any wages, and, therefore, you are to take that out of the case. Speaking of expenditures, you are to consider the amount of expenses he was put to by reason of the injury. His statement on that question is that he paid for nursing about $88 ; that he paid for drugs about $100; (he said on cross-examination that it was at least $92, but he didn’t know what it was, it was somewhere in the neighborhood of $100), and that his expenses altogether were about $700 or $800. Dr. .Hazen said that he charged $300 for his services, which had been paid in part. The plaintiff says that Dr. Prentiss charged him $150, and Dr. Thompson charged from $5 to $10. The washing, he says, was 25; but I suppose he meant the extra washing. He didn’t say who nursed him; but his son said that his mother and sister did so. Now, if you believe that they did the nursing, he could not say that the $88 was what they charged him. He could not charge for their services in nursing; but the presumption, I presume, is' that it was somebody else he paid for the services. The testimony the other way is that the wife and daughter did nurse him.
    “ Now, if you find that he was injured by the negligence of the defendant, in not having this railing there, then these are proper items of charge: the amounts that he is out of his bodily and mental suffering. Now, he says that his sufferings were intense and agonizing, and from the doctor’s statement of the case, and from the nature of the wound, his sufferings must have been very severe. That is not a matter that can be proved very well. You must decide that according to your good sense; and say what you think he is entitled to for it. Then there is again evidence of the effect upon his permanent health. • The principal witness on that subject is Dr. Hazen, who said that certain tissues between the cuticle and the skull are absent, and that the absence of those would incline him to take cold and to neuralgia because of that much more readily than he otherwise would. He also says that this attack, and the condition in which it left him, would expose him to the recurrence of erysipelas, and that it would be more,dangerous, in his case and with less chance of recovery, than in others, who had not met with such an accident. That is an element you can also take into the account that he has been permanently injured, and, if you think he has, you are to make him a fair and reasonable allowance. This is not a case for punitive damages — exemplary damages — but it is a case for fair and reasonable compensation for the injuries he has sustained by this accident. As a matter of law, I say to you that there is a cause of action, and that the defendant is liable, if you believe that it was a piece of negligence on their part in allowing that place to remain unprotected. As to the plaintiff’s slipping, something was said about that. The law says that these areas shall be enclosed by iron railings. It does not mean, it is not based upon the idea, that they are necessary when people walk along carefully. It is for such cases that might occur accidentally in a great thoroughfare, where people may jostle each other. .He fell right opposite this area. What ordinary experience shows is that if the railing had been there possibly he would not have fallen, because he would have had these railings to catch at. There was no railing there, and there were steps leading down into the area. If a man had begun to descend there by falling, and a rail had been there as required by law, he pocket, or what he owes the doctors; what he has paid the druggist; what he has paid for washing that was rendered necessary, as he says, by ’the condition of the wound on his scalp. You are also at liberty to allow him in such case for would have had something to catch at, something to grab hold of. Gentlemen, take the case.”
    To so much of the foregoing charge, as is included in the following paragraphs, the defendant excepted:
    1. “ The only question left in this case, under the instruction of the court, is the question of damage.”
    2. “ As a matter of law, I say to you, that there is a cause of action, and that the defendant is liable, if you believe that it was a piece of negligence on its part, in allowing that place to remain unprotected.”
    He fell right opposite this area. What ordinary experience shows is, that if the railings had been there, possibly he would not have fallen, because he would have had these railings to catch at. There was no railing there, and there were steps leading down into the area. If a man had begun to descend there by falling, and a rail had been there, as required by law, he would have had something to catch at, something to grab'hold of.
    A motion for a new trial being overruled, the defendant appealed to the General Term.
    S. S. IIenkle and C. Maurice Smith for plaintiff.
    A. G. Riddle and Francis Miller for defendant.
   Mr. Justice Merrick

delivered the opinion of the court.

In this case — McGill against the District of Columbia— there were substantially three points presented by the appellant. The first was, that under the existing laws touching the organization of the District of Columbia, there is no longer any liability on the part of the authorities for an accident happening by reason of any neglect of duty in the control, management, custody and care of the streets of the city. The court, after the decision in the case of Barnes vs. The District, 91 U. S., 540, does not think that that is any longer an open question in this court, nor does it think that the modifications which have been made touching the administration of the city and touching the mode of collecting taxes, at all change the principle of liability established by that case.

The second question in order, is the exception taken by the counsel to the charge of the court, in which it is supposed that the court took away peremptorily from the jury every question except the question of damages in the cause. A careful consideration of the charge will show that that is is not a proper construction of it, and even if it were it would be justified by the state of the record, inasmuch as it appears by the charge of the court incorporated in the bill of exceptions that the counsel for the defendant himself admitted before the jury that the question of damages was the only question before the jury, subject of course to the review of this court upon the law as laid down by the court below in the specific instructions previously given. But the law as there laid down was the law for that court at that time and for that jury. The counsel then, in that case, having admitted in open court, in the presence of the jury, as certified by the bill of exceptions containing the charge, that that was the only question before the jury, it does not seem to us competent for him in the face of that formal admission for the purposes of the cause, to take exception to the charge of the court for thus limiting the mind of the jury to that which he himself, as the representative of the defendant, admitted was the only subject-matter for their consideration.

Therefore the ruling of the court is consistent, in that view, upon the charge and upon that exception.

The main point in the case arises upon the prayers made by the defendant, to the effect that the place where the accident happened being an area in front of a house, and the immediate point of the accident being in front of the door of the basement to which that area led, that that part of the area was a privileged point in the area, and that’unless the plaintiff showed to the jury that the fall occurred at some other point of the area than that in front of the door, the defendant was not liable. This court does not so understand the law of the case. The only building regulation which has been referred to is contained in the record and is in these words:

“Areas must be protected by iron or stone railing at least forty-two inches in height; and where they extend the entire width of any lot frontage, shall be protected by said railing, with openings or gates four feet wide."

There is nothing in that, and that is the only ordinance or building regulation on the subject, which grants, as a matter of right, that the party shall have in the area an opening directly at right angles to the walk and in front of the door. And it is well known, as a matter of fact, that in a large portion of the cases where areas are used in this city, the opening is not made immediately opposite to the door, but on the side, or in some other relative position towards the door.

Where an area is made, as this was, along the entire frontage of the lot, with a requirement that in such case it shall be protected by a railing, with openings or gates four feet wide, in the absence of a conformity to that regulation the whole area is an illegal area from beginning to end, and there is no right whatsoever for a party who has thus made an area which is illegal throughout its whole extent, to say that he had the privilege of exemption from liability for his violation of law because an accident may have happened in front of the door. There is no dedication, where an area is made to that extent, of any particular part of it for the uses of the building to which it is suppose to be subordinate. But, on the contrary, so far as the facts of this case disclose, here was an area eighteen feet' in length, the entire frontage of the building, with steps of equal length, thus inviting, and so far as the party himself could do, dedicating the entire extent of that area as an adit to that building, in violation of the law, and thus taking away from him any pretence that he had specially dedicated, according to a supposed privilege, a particular part of the area as an , adit to that building. He is himself practically estopped from saying that, he had dedicated that particular portion in front, since he had made the whole stairway down that area equally the means of approach to the doorway of that house.

It is all important, whatever may be the hardship in the particular case, that the areas of this crowded city, becoming more and more crowded, which have been dedicated to the 'uses of the public, should not be subordinated to the particular objects of gain, pleasure pr otherwise of the occupant of a particular house. The rights of the individual are held in subjection to the rights of the public, and it is the duty of the court, however painful it may be in a particular instance, to hold Up the rules of law with a stern and unflinching hand in order that the rights of the public may not be violated Under any gradual encroachments created by the greed of those who happen to own property along the line of the highway. Individual interest is secondary always to the public right and the public good.

For these reasons, the court holds that this area being illegal throughout, an accident in any part of it is an accident for which the public authority is responsible ; and the judgment of the court below, being without error, must he affirmed. 
      
      See Clark vs. The District, 3 Mackey, 79.
     