Foust v. Penna. Railroad Co.
| Decision Date | 22 May 1905 |
| Citation | 212 Pa. 213 |
| Parties | Foust <I>v.</I> Pennsylvania Railroad Company, Appellant. |
| Court | Pennsylvania Supreme Court |
Before DEAN, BROWN, MESTREZAT, POTTER and ELKIN, JJ. Affirmed.
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John D. Dorris, for appellant.—The request for binding instructions in favor of defendant should have been affirmed instead of refused: Gold v. Philadelphia, 115 Pa. 184; Hobson v. Philadelphia, 155 Pa. 131; Com. ex rel. v. Killinger, 1 Pearson, 257.
Public streets and highways belong to the commonwealth, and when the government sees fit to vacate them the consequential loss, if there be any, must be borne by those who suffer it: McGee's Appeal, 114 Pa. 470; Hartman v. Incline Plane Co., 159 Pa. 442; Penna. R. R. Co. v. Lippincott, 116 Pa. 472; Penna. R. R. Co. v. Marchant, 119 Pa. 541; Jones v. Erie & Wyoming Valley R. R. Co. 151 Pa. 30; Penna. Co. for Ins., etc., v. R. R. Co., 151 Pa. 334; Neff v. R. R. Co., 202 Pa. 371; Pittsburg Southern Ry. Co. v. Reed, 6 Atl. Repr. 838.
H. H. Waite, with him Thos. F. Bailey, for appellee.—We have a clear right of action if the nature of our injury is such as to entitle us to recover: Phillips v. Dunkirk, etc., R. R. Co., 78 Pa. 177.
A common-law action may be maintained against a corporation for an injury done to private property in the exercise of the right of eminent domain: Penna. Railroad Co. v. Duncan, 111 Pa. 352; P. & R. Railroad Co. v. Patent, 17 W. N. C. 198.
The damage must be peculiar to the person injured, differing both in degree and kind from that of the general public: Penna. R. R. Co.'s App., 115 Pa. 514; Penna. Schuykill Val. R. R. Co. v. Walsh, 124 Pa. 544; Penna. Co. v. R. R. Co. 151 Pa. 334.
OPINION BY MR. JUSTICE MESTREZAT, May 22, 1905:
The plaintiff is, and has been for many years, the owner of a gristmill which is situated about twenty-five yards south of the defendant company's railroad and near the north bank of the Juniata river, in Brady Township, Huntingdon county. The village of Mill Creek lies on the north side of the railroad, and, in 1901, two public roads led from it to the mill, one crossing the railroad just west of the mill at grade, and the other, by an overhead bridge 420 feet east of the grade crossing. Customers of the mill approached by one route and departed by the other. In 1901, the defendant company constructed two additional main tracks at this point on the south side of its road which necessitated the abandonment of the two crossings which led to the plaintiff's mill. As a substitute for the abandoned crossings the company constructed a new public road which passes under the railroad about 180 feet west of the former grade crossing. The plaintiff brought this action to recover damages for injuries which he alleges he has sustained by reason of the destruction of the two public roads crossing the railroad, and averred in the statement, inter alia, as follows: "That by reason of the overhead bridge and the grade crossing aforesaid, the patrons of his mill had convenient and easy access thereto, and that since the destruction of the said overhead bridge and the grade crossing, by said defendant, access to and from his mill has been rendered extremely dangerous and difficult, so that few, if any, of his former patrons will patronize his mill, and that the usefulness of his mill has been practically destroyed; that prior to the destruction of the bridge and grade crossing by the said defendant company, the mill afforded the plaintiff large profits by its operation and was a valuable and productive property; since the destruction of the said bridge and the said grade crossing by the defendant company, he has been unable to operate his mill except at a loss and has been compelled to cease operating it; .... that he has by reason of the destruction of the said overhead bridge and the said grade crossing suffered great and lasting injury peculiar to himself as owner of the said mill, and due to the peculiar location of the bridge and grade crossing relative to his mill." The case was submitted to the jury which returned a verdict for the plaintiff and, judgment having been entered on the verdict, the defendant has appealed.
The defendant company in its second assignment alleges error in the court's answer to its fourth point, which is as follows: "The plaintiff has failed to show any damage which is peculiar to himself and different in kind and degree from and beyond that which is sustained by the general public." The court's answer was: "It is for the jury to determine whether the plaintiff has suffered any damage peculiar to himself." The correctness of this answer is the controlling and only question which requires consideration on this appeal. The counsel for the...
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Foust v. Pa. R. Co.
...A. 829212 Pa. 213 FOUST v. PENNSYLVANIA R. Supreme Court of Pennsylvania. May 22, 1905. Appeal from Court of Common Pleas, Huntingdon County. Action by I. N. Foust against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. Defendant presented the fol......