Ridge Avenue Passenger Railway Co. v. City of Philadelphia

• Decision Date: 15 July 1897
• Docket Number: 222
• Parties: Ridge Avenue Passenger Railway Company, Appellant, v. The City of Philadelphia
• Court: Pennsylvania Supreme Court

37 A. 910

181 Pa. 592

Ridge Avenue Passenger Railway Company, Appellant, v. The City of Philadelphia

No. 222

Supreme Court of Pennsylvania

July 15, 1897

Argued January 19, 1897

Appeal, No. 222, Jan. T. 1896, by plaintiff, from judgment of C.P. No. 3, Phila. Co., March T., 1875, No. 353, on verdict for defendant on trial by referee. Affirmed.

Case to recover damages for injuries to plaintiff's business.

The facts appear by the opinion of the Supreme Court.

Errors assigned were in overruling exceptions to report of referee.

All assignments of error are overruled, and the judgment is affirmed.

J Howard Gendell, with him him John G. Johnson, for appellant. -- In order to relieve a city from responsibility for the act of its contractor the work must be lawful: Painter v Pittsburg, 46 Pa. 213; Rose v. Phila., 31 Leg. Int. 165.

The referee finds that no grade line had ever been established in accordance with the provisions governing the city of Philadelphia; it therefore seems to follow that the work done was altogether illegal, and no contract with a third person will relieve the city from responsibility and liability for an illegal and improper obstruction of the highway.

If a stranger or trespasser, without color of authority, dig a trench or otherwise interfere with the good condition of the street, the city is not liable for the original creation of this nuisance, for it had no part in it; but it is liable if it permit it to continue: Boyle v. Hazleton Borough, 171 Pa. 167; West Chester v. Apple, 35 Pa. 284; Elliott on Roads and Streets, 458.

E. Spencer Miller, assistant city solicitor, with him John L. Kinsey, city solicitor, and James Alcorn, assistant city solicitor, for appellee. -- We submit that a passenger railway company is not privileged above the rest of the traveling public in respect of the highway used. It would not be difficult to instance other forms of vehicles which are practically limited for their ordinary occupation to a single highway. In many quarters access cannot be had by any vehicles, save through the use of some particular street. Unless the court is prepared to discriminate as to the peculiar temporary circumstances of the vehicle which may be in question, no exceptional privilege can be accorded the plaintiff: Gold v. Phila., 115 Pa. 184; Megargee v. Phila., 153 Pa. 340.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

This is a suit for damages against defendant for illegally permitting obstruction to travel on Ridge avenue, a street of the city, for several years prior to March 30, 1875. Under act of assembly of March 30, 1811, the Ridge Avenue Turnpike Company was incorporated, with right to construct a road from the intersection of Vine and Tenth street to Perkiomen bridge in Montgomery county. This was done, and in, and for a considerable distance out of the city limits was known as the "Ridge Road." By the terms of the charter, the road was to be macadamized and constructed not less than forty nor more than sixty feet wide, with a good and sufficient summer road at the side thereof where practicable, and the company was thereafter forever to maintain it in perfect order and repair. By the Consolidation Act of 1854, the boundaries of the city were extended to include within its limits all of the road up to the Montgomery county line, and on the city plan the turnpike was adopted as a city street by the name of "Ridge avenue." By act of April 15, 1858, the Girard College Passenger Railway Company was authorized to construct a railway down Ridge avenue from the college to Tenth and Ninth streets. By act of March 28, 1859, the Ridge Avenue and Manayunk Passenger Railway Company was authorized to construct a railway from the college, by the Ridge avenue and Manayunk turnpikes, to Manayunk and Roxborough, within the city limits, with the proviso that the passenger railway company, before commencing construction, should purchase the right of way from the turnpike companies. It was further provided in the act that the passenger railway company, in construction, should conform to the grades of the streets now established or hereafter to be established, and at their own expense perpetually keep the streets in good repair. Acting under the supposed authority of the act of March 8, 1872, the two passenger railways were consolidated under the name of the Ridge Avenue Passenger Railway Company. While this act was afterwards, in City v. Railway Co., 142 Pa. 484, declared unconstitutional, nevertheless, without it, the consolidation was lawful under previous legislation. When the Ridge Avenue and Manayunk Company constructed their railway they located it, not upon the middle or macadamized part of the turnpike, but upon the summer road at the side; and in obedience to the injunctions of the act under which the company was incorporated, it purchased from the turnpike company the right of way, for the sum of fifteen thousand dollars; and by another agreement of same date it was stipulated that if the city should at any time purchase the turnpike, the turnpike company would provide in some manner that there should be no interference with the grade of the railway company, and no alteration of the same without the consent of the railway company, and further, that the railway company should not have imposed upon it the obligation of keeping the street in repair. Subsequently to this agreement, the city, at different times, but before 1870, by proceedings in the quarter sessions, acquired the whole of the turnpike within the city limits. By resolution of councils, March 26, 1870, the city decided to grade Ridge avenue from Columbia avenue to Dauphin street, and contracts were entered into on July 13th and 18th following with Patrick McEntee to do the work according to the specifications of an ordinance theretofore passed, and to complete the work within six months after notice to begin from the chief commissioner of highways; if not so completed, the commissioner was authorized to annul the contract at three days' notice; but no work was to be done between the first days of December and April.

The work was not completed by McEntee, and from May 1872, to October, 1873, five other contracts were made with other contractors for parts of the work, some of it between Columbia avenue and Dauphin streets, covered by the McEntee contract, and other parts extending the entire length of the avenue, about four miles, to Wissahickon creek. Some of the contracts were for paving the sidewalks; others for grading the bed of the street, and the work, from date of commencement to finish, covered a period of four years. During...