Pennsylvania and Ohio Canal Co. v. Graham

• Decision Date: 03 January 1870
• Citation: 63 Pa. 290
• Parties: The Pennsylvania and Ohio Canal Co. <I>versus</I> Graham.
• Court: Pennsylvania Supreme Court

Page 290

63 Pa. 290

The Pennsylvania and Ohio Canal Co. versus Graham.

Supreme Court of Pennsylvania.

November 15, 1869.

January 3, 1870.

November 15th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Lawrence county: No. 7, to October and November Term 1869.

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B. B. McComb and F. Hutchins, for plaintiffs in error.—The obligation of the company was to the Commonwealth, the money, if any, was public and the remedy could not be private: 3 Black. Com. 219; Broom on Common Law 97. The accident was unavoidable, there was therefore no liability: Brown v. Mallett, 5 C. B. 599. The duty of repair was on the township: 3 Bacon's Abr. 498, 500; 3 Burns Just. "Highways," Acts June 13 1836, sect. 6; 31 Pamph. L. 556, 560, April 12 1855, sect. 1; Pamph. L. 220; Purd. 875, 876, 879, pl. 41, 47, 79. The township would have its remedy against the company: 1 Redfield on R. R. 538 et seq.; Painter v. Pittsburg, 10 Wright 213. The declaration should have charged negligence: 1 Hilliard on Torts 109. The requisition of the charter to repair was a limitation of the franchise not a rule of liability: Monongahela Bridge v. Kirk, 10 Wright 112. Negligence is necessary to create liability: Dunlap v. Knapp, 14 Ohio S. Rep. 64; Oakland R. R. v. Fielding, 12 Wright 320; Angell on Highways, sect. 272; Lancaster Can. Co. v. Parnaby, 11 A. & E. 243; Orcutt v. Kittery Bridge, 53 Maine 500; Baxter v. Winooski Turnpike, 22 Vermont 114; Matthews v. Same, 24 Id. 480. The contractor to build the bridge alone was liable: 1 Parsons on Contr. 86-92; 2 Hilliard on Torts 446-460; Clark v. Try, 8 Ohio S. Rep. 358.

L. Taylor (with whom were D. B. & E. T. Kortz), for defendant in error.—The company took their privileges with the burdens: Penna. R. R. v. Com'th, 3 Grant 131. Whether the neglect was wilful or inadvertent is unimportant: Erie City v. Schwingle, 10 Harris 384; Pittsburgh v. Grier, Id. 64; Dean v. New Milford, 5 W. & S. 545. The company are liable although the defect was latent: Yale v. Hampdon & B. Turnp., 18 Pickering 357. The happening of the injury raises the presumption of want of care: Laing v. Colder, 8 Barr 482; N. Jersey R. R. v. Kennard, 9 Harris 204; Railroad Co. v. Aspell, 11 Id. 149; Sullivan v. Philadelphia & Reading R. R. Co., 6 Casey 239; Tennery v. Pippinger, 1 Phila. Rep. 543; 2 Pars. on Con. 228, note.

The opinion of the court was delivered, January 3d 1870, by SHARSWOOD, J.

The first twelve assignments of error all depend upon one question, whether the defendants below were responsible in damages to the plaintiff for the injury which he sustained in consequence of the admitted insufficiency of the bridge over their canal, without some evidence of actual or wilful negligence on their part.

It has been argued that the defendants are not liable to the plaintiff at all, because they owed him no duty. Their charter, by the terms of which they were "to build and keep in good repair suitable and convenient bridges over the canal," it is contended, was a contract with the state, who, alone, can take advantage of its violation. There was no privity, therefore, in the plaintiff. But even regarding it in that light, for whose use and benefit did the Commonwealth exact this engagement from the corporation, as one of the terms and conditions upon which the franchise was granted? This particular clause was evidently for the benefit of all persons travelling upon the public highways. If A. contracts with B. to do a certain thing for the benefit of C., and does it so badly that C. is injured by his misfeasance, C. could not perhaps sue directly on the contract, but non constat that he could not maintain an action on the case, on the principle that it was a breach of duty to him, though springing from a contract with another. If, as the argument seems to admit, the Commonwealth could sue for the use of the plaintiff, there is no reason why he may not maintain an action in his own name.

But it is not necessary to rely on this line of reasoning. The charter is, indeed, a contract; but it is also a law imposing upon the defendants, as a corporation, the burden of performing a certain duty to the public. If that duty to the public has not been performed, they become thereby responsible to all persons who may suffer any special injury in consequence of it. Upon the same principle, which has been settled law from the Year-Books downward, if a party has sustained any special damage from a public nuisance beyond that which affects the public at large, whether it be direct or consequential, an action will lie against the author of the nuisance, for redress. If the defendants, although under the authority of their charter, built a bridge over their canal, which either originally was rotten and unsafe, or became so subsequently, it was a public nuisance in the highway, and the plaintiff, having suffered a direct, special injury, was entitled to recover of them the damages: Wilkes v. Hungerford Market Company, 2 Bingh. N. C. 281; Hughes v. Heiser, 1 Binn. 463; Pittsburgh v. Scott, 1 Barr 309; Commissioners v. Wood, 10 Id. 93; Baxter v. Winooski Turnpike Company, 22 Verm. 122.

In Manley v. St. Helen's Canal and Railway Company, 2 Hurls. & Norm. 840, the defendants had, by Act of Parliament, the right to construct a canal and take tolls thereon; and had built the same across an ancient highway, having made a swivel bridge across the canal for the passage of the highway. A boatman having opened the swivel bridge to allow his boat to pass through in the night time, a person walking along the road fell into the canal and was drowned. It was held that the defendants, having a beneficial interest in the tolls, were liable to an action, the same as any owner of private property would be, for a nuisance arising therefrom. "It has been urged," said Pollock, C. B., "that what was done by this Canal Company was done by them under the authority of an Act of Parliament, passed many years ago, and with the same responsibility as attaches to the trustees of a highway, or other persons, acting in the performance of functions intrusted to them by statute. I do not think that argument can prevail. The owners of this canal were to be looked on as a trading company, who, though the legislature permits them to do various acts described in the statute, are to be considered as persons doing them for their own private advantage, and are, therefore, personally responsible if mischief ensues from their not doing all they ought, or doing, in an improper manner, what they are allowed to do." In The Cumberland Valley Railroad Company v. Hughes, 1 Jones 140, in the case of a railway company, it was held to be their duty to keep the road in sufficient repair. It is a condition attendant upon a grant of the privilege to construct a public road or highway for profit, which from its very nature, enures to the benefit of all who may have occasion to use the thoroughfare. In The Schuylkill Navigation Company v. McDonough, 9 Casey 73, it was decided that the remedies against a canal company, provided by their act of incorporation, for injuries arising from the construction of the works, do not exclude the common-law remedies for...