Bodemer v. County of Northampton

• Citation: 101 Pa.Super. 492
• Decision Date: 27 February 1931
• Docket Number: 321-1930
• Parties: Bodemer v. County of Northampton, Appellant
• Court: Pennsylvania Superior Court

101 Pa.Super. 492

Bodemer v. County of Northampton, Appellant

No. 321-1930

Superior Court of Pennsylvania

February 27, 1931

Argued December 9, 1930.

Appeal by defendant from judgment and decree of C. P., Northampton County, No. 129-1929, in the case of Frederick W. Bodemer v. County of Northampton.

Appeal from an order of the Public Service Commission. Before McKeen, J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 500 upon which the court entered judgment. Defendant appealed.

Error assigned was the judgment of the court.

Francis E. Walter, for appellant. -- Damages for consequential injuries are recoverable only where the right is expressly given by statute: Jackman v. Rosenbaum, 263 Pa. 158; Hoffer v. Reading Co., 287 Pa. 120.

Loss of profits and business due to the diversion of traffic as a result of improvement is not a proper item of damage Spang & Co. v. Commonwealth, 281 Pa. 414; Pittsburgh and Western R. R. Co. v. Patterson, 107 Pa. 461; Becker v. Philadelphia & Reading R. R. Co., 177 Pa. 252.

Asher Seip, and with him Smith & Paff, for appellee. -- The plaintiff can recover for a substantial interference with access to his premises: Donnelly v. Public Service Commission, 268 Pa. 345; Lafean v. York County, 20 Pa.Super. 573; Foust v. Penna. R. R. Co., 212 Pa 213.

Before Trexler, P. J., Keller, Linn, Gawthrop, Cunningham, Baldrige and Whitmore, JJ.

OPINION

Keller, J.

In proceedings for the abolition of a series of dangerous railroad grade crossings on State Highway Route No. 165, from Easton to Bangor and Stroudsburg, the Public Service Commission ordered the vacation and closing of so much of the road as crossed nine railroad tracks -- four separate crossings --, and a county bridge over Martin's Creek, and laid out in its place a new road on the west side of Martin's Creek, and, at a distance of half a mile from the abolished grade crossings, intersected it with a new concrete road, with an overhead bridge, leading eastwardly to Mt. Bethel.

Before the crossings were abolished, a road forked off from the main highway to the right at a sharp or acute angle, a short distance north of the county bridge, which led to Mt. Bethel. The plaintiff's property (hotel and gasoline filling station) was located on old highway route 165 and directly opposite this fork, about 700 feet from where the new state highway began, and a very short distance away from the old county bridge, which was ordered to be closed and demolished. Before the change every traveler on this road from Easton whether, at the forks, he went northwestwardly to Bangor, or northwardly to Mt. Bethel, passed the plaintiff's place. After the change, the road southward from the fork ended in a cul de sac or dead-end at the abandoned bridge, and travelers from Easton to Bangor or Mt. Bethel never came within 1800 feet of plaintiff's place, and in order to get to his place from Easton had to travel 3400 feet farther; and to stop there on the way to Bangor had to go almost a mile farther; while travelers from Bangor to Easton were 1800 feet out of his way, and to get to his place had to travel that distance and then retrace their journey back again to the new concrete road which runs from the newly located State Highway Route 165 to Mt. Bethel.

The Public Service Commission ordered the County of Northampton to pay the damages resulting from the change, and the plaintiff claiming that he had suffered special damages, differing in kind from the general public, in that his property had been shut off from direct access to the highway south of the abandoned bridge and crossings, presented his claim before the Public Service Commission by whom he was awarded $ 18,000 damages. The County appealed, and on the trial in the court of common pleas the jury awarded the plaintiff $ 500. The County has again appealed, and assigns for error the refusal of the court to enter judgment non obstante veredicto in its favor. Its other assignment of error is in violation of rule 22 and will be disregarded.

The question involved has been considered so recently by the Supreme Court in Donnelly v. P. S. C., 268 Pa. 345, 112 A. 160, and Hedrick v. Harrisburg, 278 Pa. 274, 122 A. 281; and by this court in Holmes & Holmes v. P. S C., 79 Pa.Super. 381, that we deem it unnecessary to discuss the subject at great length. The general subject has also been treated very fully in Westmoreland Chemical & Color Co. v. P. S. C., 294 Pa. 451, 144 A. 407, which related to an award for damages for change of grade in the abolition of a grade crossing, and sustained a judgment in favor of the injured plaintiff; but the discussion treats also of damages caused by the vacation of a road in such proceedings, and the opinion is helpful in the consideration of this case. The basis of recovery goes back to the decision of the Supreme Court in In re Melon Street, 182 Pa. 397, 38 A. 482, which reversed the judgment of this court in ...