Mellick v. Pennsylvania R. Co.
| Decision Date | 13 October 1902 |
| Docket Number | 206 |
| Citation | 203 Pa. 457,53 A. 340 |
| Parties | Mellick v. Pennsylvania Railroad, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 14, 1902
Appeal, No. 206, Jan. T., 1901, by defendant, from judgment of Superior Ct. Jan. T., 1901, No. 42, affirming judgment of C.P. Columbia Co., May T., 1898, No. 14, on verdict for plaintiff in case of O. B. Mellick v. Pennsylvania Railroad Company. Reversed.
Appeal from Superior Court. The facts appear in the opinion of the Supreme Court.
The case is reported in 17 Pa.Super. 12.
Error assigned was in the following form:
Then followed numbered extracts from the opinion of the Superior Court.
Judgment reversed and venire de novo awarded.
James Scarlett, with him L. E. Waller, for appellant, cited Londonderry Twp. Roads, 129 Pa. 249; Reese v. Hershey, 163 Pa. 253; Reel v. Martin, 12 Pa.Super. 345; Barclay R.R. & Coal Co. v. Ingham, 36 Pa. 194.
Fred Ikeler, of Ikeler & Ikeler, with him Edward S. Gearhart, for appellee, cited: Knowles v. Penna. R.R. Co., 175 Pa. 624.
Before McCOLLUM, C.J., MITCHELL, DEAN, BROWN and MESTREZAT, JJ.
The assignments of error are not in the best form, being mainly propositions or detached quotations from the opinion of the Superior Court. The question here is not whether the Superior Court was critically accurate in all its statements of law or fact, but whether it was correct in its dealing with the alleged errors of the court below. In regard to the assignment of errors, an appeal from the Superior Court to this court is analogous to an appeal from a judgment of the common pleas or orphans' court on exceptions to the findings and report of an auditor or referee. The proper form therefore is that "the Superior Court erred in not sustaining (or in sustaining as the case may be) the first assignment of error to the judgment of the common pleas, to wit," etc. The assignments of error in the Superior Court are therefore the principal errors with which this court is usually concerned and which will generally develop the whole controversy, but if there are any new and further matters raised by the judgment of the Superior Court itself, they should be assigned separately in their due order.
A public road crossed underneath a railroad and then ran parallel with it but at a lower grade a short distance to a ferry. A bridge was being constructed, the approach to which would cross the road at right angles, but above it at the grade of the railroad. Plaintiff who was constructing the approach dumped earth, etc., necessarily, as he claimed, on the old road between the bridge pier and the railroad, so that the road was practically closed. Defendant then dumped earth, etc., on the old road at the place where it ran under the railroad.
Up to this point the facts are substantially undisputed. Plaintiff claimed that the dumping of earth under the railroad by the defendant obstructed the old road, thereby compelling him to haul material for his fill from the other side of the river at increased expense, and that it was done intentionally with that object. Defendant claimed first that it had not obstructed the plaintiff inasmuch as he had ceased hauling from that side of the river before the dump was made; and secondly, that plaintiff's filling in on the road had obstructed the access to its station, and its dumping of materials on the road was with intent to make a slope by which the public could continue to get to its station until the new road should be opened across the bridge. This was the substantial issue at the trial. It is clear that the defense was good in law, if true in fact, and the question here is whether the defendant was allowed proper opportunity to present it to the jury.
The most important errors to which our attention is called relate to the construction of the act of June 13, 1836. The court instructed the jury that the plaintiff had the right to obstruct or close the old road at the point where the bridge approach crossed it, if it was necessary in building the approach. But unfortunately there was no evidence in the case to justify this instruction. Section 24 of the Act of 1836, P.L. 558, provides that "whenever the whole or any part of a road shall be changed or supplied, the same shall not be shut up or stopped until the road laid out to supply the place thereof shall be actually opened and made." While we might hesitate to say that there may not be a case of necessity so absolute as to permit the temporary closing of the old road before the actual opening of the new, yet the necessity must be real, must be clearly proved, and the onus of so proving it was on the plaintiff. The explicit mandate of the statute is against it, and therefore that such method may be easier, cheaper and quicker will not avail. The plain intent of the act is that the public shall have the use of a road, either the old or the new, all the time. Such is the received construction of the act. In Roads in Londonderry Township, 129 Pa. 244, it is said, citing section 24. And where an order closing the old road was improvidently made under the supposition that the new road had been actually opened, the order was set aside as void: Phila., etc., R.R. Co.'s Appeal, 171 Pa. 312.
It was argued that the necessity here was so manifest that the jury might find it without any affirmative testimony. But a verdict must be founded on the evidence in the case, not on the jury's notions outside of what is before it. See Forrest v. Buchanan, ante, p. 454. And independent of that, the inference from the admitted facts here is rather the other way. There is nothing to show that the old road could not have been spanned by a trestle and thus kept open until the new roadway of the bridge was ready for use. If the bridge had been part of an entirely unconnected highway having no relation to the old one, which was to remain, the approach would have had to be carried across the latter on a permanent arch of stone or iron, or trestle work. There is nothing to indicate that this might not have been done by a temporary structure which would keep the old road open in compliance with...
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