City of Reading v. United Traction Co.

• Decision Date: 19 May 1902
• Docket Number: 99
• Citation: City of Reading v. United Traction Co., 52 A. 106, 202 Pa. 571 (Pa. 1902)
• Parties: Reading v. United Traction Co., Appellant
• Court: Pennsylvania Supreme Court

52 A. 106

202 Pa. 571

Reading v. United Traction Co., Appellant

No. 99

Supreme Court of Pennsylvania

May 19, 1902

Argued March 3, 1902 [Copyrighted Material Omitted]

Appeal, No. 99, Jan. T., 1901, by defendant, from judgment of C.P. Berks Co., May T., 1898, No. 122, on verdict for plaintiff in case of City of Reading v. United Traction Company. Affirmed.

Assumpsit to recover the cost of paving a street. Before ENDLICH, J.

At the trial the jury returned a verdict in favor of the plaintiff for the sum of $10,328.68, subject to the question of law reserved whether there was any evidence which entitled the plaintiff to maintain the action.

On a rule to show cause why judgment should not be entered for defendant non obstante veredicto, ENDLICH, J., filed the following opinion:

The principal question raised by this rule is this:

Where a street railway company has with its tracks occupied streets of a city, with its consent and on condition (a) that it pave its right of way and keep the same in good repair, or (b) that it pave said right of way in a specified manner superior to the then construction of the streets and keep said paving in good repair, -- can the city, upon adoption and upon notice to the company of the adoption of an improved pavement for the rest of the street, with which the original pavement of the right of way is incongruous and practically incompatible, require the company, the pavement upon its right of way being in fact out of repair, to replace the same with a pavement reasonably corresponding with the street pavement adopted?

It will at once be seen that a comprehensive and conclusive answer to this question is not furnished by the decisions in Philadelphia v. Ridge Ave. Pass. Ry. Co., 143 Pa 444, and Philadelphia v. Hestonville, etc., Pass. R.R. Co., 177 Pa. 371, which involved the liability of street railway companies to reconstruct the entire streets over which they had been granted a right of way on condition of keeping them in repair, nor by those in Norristown v. Pass. Ry. Co., 148 Pa. 87, and Philadelphia v. City Pass. Ry. Co., 177 Pa. 379, in which there was no pretense that the company's right of way was out of repair, but a claim on the part of the municipality that, regardless of that question, it could insist upon a reconstruction by the company whenever a new style of street pavement was adopted, and with the identical material used therein. Like distinctions are to be drawn between the present case and those passed upon in the decisions of other jurisdictions cited by defendant's counsel. Of one of them, Gilmore v. Utica, 121 N.Y. 561; 24 N.E. Repr. 1009, it may be remarked that the point there decided was simply that, if the municipality made no use of its mere discretion under the law to compel a street railway company to bear a share of the expense of repaving a street in part occupied by it, the owner of a property along the street had no standing to question the validity of a municipal assessment laid upon properties fronting thereon to meet the entire cost of the improvement. On the other hand, the applicability of the main ruling in McKeesport v. Pass. Ry. Co., 158 Pa. 447, where the ordinance consenting to the company's occupation of the streets required it to keep its right of way in good repair and also, in the event of change of grade or improvement of the streets, to conform thereto, depends upon the question, not expressly passed upon in that decision, whether the ordinance is or is not simply declaratory of the duty of railway companies in such circumstances.

When, looking beyond the decisions referred to, we search for principles to guide us to a conclusion, we find first of all that it is recognized, with substantial unanimity, that a railway company, whether general or passenger, is bound to keep the portions of streets occupied by its right of way in good condition, even in the absence of any express contract or statutory direction to that effect: 2 Wood, Railroads, pp. 758, 760; Pierce, Railroads, p. 245; Mills, Em. Dom. sec. 198; Elliott, Roads and Streets, p. 591; Worster v. R.R. Co., 50 N.Y. 203; North Hudson County Ry. Co. v. Hoboken, 41 N.J.L. 71; Ry. Co. v. State, 87 Tenn. 746. As illustrating the acceptance of this principle in Pennsylvania, it is only needful to refer to Phoenixville v. Iron Co., 45 Pa. 135, R.R. Co. v. Irwin Boro., 85 Pa. 336 and Harrisburg v. Pass. Ry. Co., 1 Pears. 298. But in the next place, the duty to keep in repair involves something more than the mere preservation of the condition in which the street was when first occupied by the railway, or in which the right of way was then put by the company. In Phoenixville v. Iron Co., 45 Pa. 135, the duty to repair is declared to be a continuing one, and as such it is held, in Burritt v. New Haven, 42 Conn. 174, State v. Ry. Co., 35 Minn. 131, 26 N.W. 3, and State v. Ry. Co., 39 Pa. 219, to embrace a liability to make such subsequent alterations and improvements (e.g., changing a grade to an overhead crossing), as from time to time may become necessary for the convenience of the public in the use of the streets. Succinctly and most aptly put by Mr. Justice MITCHELL, in Philadelphia v. St. Pass. Ry. Co., 169 Pa. 269:

"The duty to repair, where it exists, extends to the replacement of an old pavement by a new one of different and improved kind . . . the company is bound to keep pace with the progress of the age in which it continues to exercise its corporate functions."

Understanding this utterance as made in view of the decision in Norristown v. Pass. Ry. Co., and as perfectly consistent with that in Philadelphia v. City Pass. Ry. Co., supra, it would appear that the company's duty to repair does not exist -- in the sense that it calls for no action on the company's part -- while the condition of the pavement as originally required on that portion of the street occupied by the right of way is such that it needs no mending, and that in such case the city has no right to call upon the company to replace it with a different and better one, i.e., to engage in what then would be more properly termed reconstruction than repair. Accordingly, in Elliott, Roads and Streets, pp. 594, 595, the doctrine is laid down as the one deducible from the authorities, that a railway company, in respect to the condition of its right of way upon the streets of a city, is bound to repair but not to improve, but that the duty of making repairs requires them to be made in such manner and with such materials as will correspond with the general condition of the street at the time the repairs are needed; so that, whilst the company is not compellable to tear up a sound pavement of antiquated style and replace it with a different and better one, yet if a necessity for repairing the pavement within the right of way arises after an improved pavement has been laid in the remainder of the street by the city, the latter may require the company reasonably to confirm with such improved pavement. And it is pertinently observed at p. 594.

"If it be true that the company is not bound under the continuing duty to make repairs to correspond with the improved or changed condition of the street, then the practical result would be that it would be entirely released from its duty, since it is quite clear that repairs of any other character would be without value or service to the public."

Nor can it require any elaboration to show that the company's duty, in repairing its defective pavement, to conform to the improved street pavement exists equally whether, when the occasion for repairs arises, the street pavement be already fully laid, or whether the work of laying it be only begun or determined upon by the city, provided, in the latter case, that the company have notice of the fact. Of course, all this refers solely to the company's right of way, its duty to repair which exists with or without contract, and with or without express legislative declaration, that is to say, exists as a common-law duty. No such duty is imposed upon it as to the remainder of the street. Where as to that any exists, it must be by virtue of statutory imposition or of contract, the precise terms of either, creating it, necessarily furnishing the only measure for the extent of it.

It is however, contended that any common-law duty, such as has been spoken of concerning the conformity of repairs required from the company to changes in its general street pavement, is superseded by the specification, in an ordinance consenting to the occupation of a street, of a particular pavement upon the right of way granted and the requirement that it be kept in repair, and that the enactment and acceptance of such an ordinance preclude the city from calling upon the company thereafter to put down a different and more expensive pavement. That the enactment of such an ordinance and its acceptance and subsequent action thereunder by the railway company establish a contract between the latter and the city, is admitted. But every contract, as is well known, must be construed and understood in the light of the circumstances under which it was made: Callen v. Hilty, 14 Pa. 286, 288; Berridge v. Glassey, 112 Pa. 442, 455; Machine Co. v. Ins. Co., 173 Pa. 53, 57, and with a view to effectuating the objects the parties meant to attain: Allison's App., 77 Pa. 221, 226; Richardson v. Clements, 89 Pa. 503, 505, and in its effect is limited to these: Doster v. Zinc Co., 140 Pa. 147, 150, 151. When this railway was constructed, the streets of Reading were macademized. The requirement to pave with cobblestones was intended to exact from the company something more, not something less, than a reasonable correspondence with the rest of the street. There was no thought of relieving the...