Commonwealth v. Baltimore & Ohio Railroad Co.

• Decision Date: 04 January 1909
• Docket Number: 89
• Citation: 72 A. 278,223 Pa. 23
• Parties: Commonwealth v. Baltimore & Ohio Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

72 A. 278

223 Pa. 23

Commonwealth v. Baltimore & Ohio Railroad Company, Appellant

No. 89

Supreme Court of Pennsylvania

January 4, 1909

Argued October 16, 1908

Appeal, No. 89, Oct. T., 1908, by defendant, from judgment of Superior Court, April T., 1908, No. 108, affirming judgment of Q.S. Washington Co., Aug. T., 1907, No. 231, on verdict of guilty in case of Commonwealth v. The Baltimore & Ohio Railroad Company, alias The Wheeling, Pittsburg & Baltimore Railroad Company. Reversed.

Appeal from judgment of Superior Court. See 35 Pa.Super. 474.

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

Error assigned was the judgment of the Superior Court.

The judgment of the Superior Court, as well as that of the court below, is reversed.

Norman E. Clark, with him Winfield McIlvaine, for appellant. -- We contend:

1. That the indictment only charges that the appellant maintained its track across this highway and frequently and rapidly passed and repassed its trains over the same.

That under its charter rights, in the act of assembly, it has full authority to so maintain its track and pass its trains over the same and under the law as laid down in Penna. R.R. Co.'s Case, 213 Pa. 373, the court has no power to control the speed of its trains. Therefore the indictment does not charge any crime under the law, and this conviction cannot be sustained.

2. That in attempting to charge a nuisance, this indictment only charges what the appellant has a legal right to do under the law and does not state or describe in what manner the appellant has unlawfully exercised that right.

Where an indictment undertakes to charge a nuisance in respect to an act which is lawful in itself, it must set forth the facts and circumstances which make it unlawful, 1 Wharton's Indictments, 23; Woods on Nuisances, sec. 854, in such a way as to enable the defendant to know the nature of the crime alleged, and plead the judgment in bar of a subsequent prosecution, Seifried v. Com., 101 Pa. 200, or the court to impose the sentence required by law in such a way as to make known to the defendant what it has to do in order to comply with the same: Clark's Crim. Proc. 150; Sadler's Crim. Proc., sec. 211.

C. L V. Acheson, district attorney, with him T. H. W. Fergus assistant district attorney, and Owen C. Underwood, for appellee. -- While it is true that the defendant company is authorized to construct and maintain its road over and across public highways and to pass its trains over the same, it is equally true that it cannot do so to the nuisance of the public: Penna. R.R. Co. v. Belt Line R.R. Co., 29 W.N.C. 202; Penna. R.R. Co.'s Case, 213 Pa. 373; Com. v. Penna. R.R. Co., 117 Pa. 637; Northern Cent. Ry. Co. v. Com., 90 Pa. 300; Com. v. New Bethlehem Boro., 15 Pa.Super. 158; State v. Railroad Co., 23 N.J. 360; Caldwell's Case, 1 Dall. 150; Com. v. Milliman, 13 S. & R. 403; Cincinnati R.R. Co. v. Com., 80 Ky. 137; Louisville, etc., R.R. Co. v. Com., 80 Ky. 143; Rex v. Russell, 6 East, 427; People v. Cunningham, 1 Denio, 524; Rex v. Jones, 3 Camp. 230; Bush v. Steinman, 1 Bos. & Pul. 404.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE BROWN:

The appellant was convicted in the court of quarter sessions of Washington county on a common-law indictment charging it with maintaining a nuisance. A motion to quash, on the ground that no crime was charged in the indictment, was overruled, as was a motion in arrest of judgment based on the same reason. The lower court was sustained by the Superior Court: 35 Pa.Super. 474; and the narrow question passed upon by each of them is now before us.

The indictment charges that the defendant unlawfully kept and maintained a railroad track and way across a public highway, "and did use the said track and way for the frequent passing and repassing of trains, whereby the use of the said road, street and public highway was and continues to be dangerous, obstructed and straitened, so that the good citizens of this commonwealth could not and have not been able since to pass and repass upon and use the said public highway as they ought and of right should and were wont and accustomed to do." There is no averment that the appellant, in laying its track across the highway, created any obstruction, and the case does not belong to the class in which railroad companies have been held guilty of maintaining nuisances because they placed actual obstructions on the highways in constructing their tracks across them: Northern Central Ry. Co. v. Commonwealth, 90 Pa. 300; Commonwealth v. Northern Central Ry. Co., 7 Pa. Superior Ct. 234. The learned judge of the Superior Court properly said that it is not the existence of the track on the highway that is complained of, but the alleged unlawful use of it.

Boiled down, the substance of what is charged in the indictment to be the offense of the appellant is the frequent and rapid passing and repassing of its trains over the highway, whereby the same was obstructed and rendered dangerous. Nothing more is to be found in the indictment, and counsel for the commonwealth frankly so admit, for their statement of the question involved is, "Can a railroad company be indicted and convicted under the common law for maintaining a nuisance at a grade crossing, arising from the manner of operating its trains, where no permanent physical obstruction of the highway is occasioned by the construction of its roadbed?" The question for determination, then, is not one of the sufficiency of the indictment under the Act of March 31, 1860, P.L. 427, which provides that every indictment shall be deemed and adjudged sufficient and good in law, which charges the crime substantially in the language of the act of assembly prohibiting the crime, or, if at common law, so plainly that the nature of the offense charged may be easily understood by the jury, but is...