Hunt v. Graham

Citations

• 15 Pa. Super. 42
• 1900 Pa. Super. LEXIS 298

Syllabus

<p>Waters and water rights — Right to take sand out of river — Bathing.</p> <p>The highest right in a navigable stream is that in the interest of commercial traffic, and the public has the right to gather stones, gravel and sand out of the beds of our public rivers, or to take fish, ice or driftwood there and under certain defined limitations to bathe therein.</p> <p>Province of court and jury — Negligence—Browning in hole excavated in public river.</p> <p>Persons engaged in the lawful business of excavating sand from the bottom of a public stream are not bound in the exercise of ordinary care to anticipate and provide against the act of a boy of fifteen, who, knowing he could not swim, and that holes made by defendants’ dredge were in the near neighborhood, walks over a river bottom, which he could not see, and into a hole made by defendant. The boy was guilty of contributory negligence, and the defendants were guilty of no negligence in leaving the hole unmarked. The issue is to be determined as a question of law.</p> <p>Infant — Presumption of sensibility of danger.</p> <p>It is legally to be presumed that a boy fifteen and one half years of age is of sufficient capacity to be sensible of danger and to have the power to avoid it.</p> <p>Bathing in public river — When and where prohibited.</p> <p>The right to bathe in a public stream is not an absolute right. It is qualified by as fixed rules as those which determine the privilege. It is permitted only at certain places, and is of the same character as the right to use or to take water from the stream.</p> <p>' A person has no legal right to enter a river for bathing in a place 200 feet distant from a public crossing, between a populous city on one side and an active borough on the other; at common law, as well as by statute, his act of bathing at such place is prohibited.</p>