Pittsburg & Birmingham Passenger Railway Co. v. Pittsburg

• Decision Date: 06 January 1876
• Citation: 80 Pa. 72
• Parties: Pittsburg and Birmingham Passenger Railway Co. <I>versus</I> City of Pittsburg.
• Court: Pennsylvania Supreme Court

80 Pa. 72

Pittsburg and Birmingham Passenger Railway Co. versus City of Pittsburg.

Supreme Court of Pennsylvania.

November __, 1875.

January 6, 1876.

November __ 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 214. This was an amicable action, to July Term 1874, of the court below, between the Pittsburg and Birmingham Passenger Railway Company, plaintiffs, and the City of Pittsburg, defendant.

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M. W. Acheson, for plaintiffs in error.

T. J. Bigelow, for defendant in error, cited Pittsburg & Bir. P. Railway Co. v. Birmingham, 1 P. F. Smith 43.

Mr. Justice MERCUR delivered the opinion of the court, January 6th 1876.

The plaintiff was incorporated by Act of Assembly of the 13th of April 1859, Pamph. L. 749. It was thereby authorized, inter alia, to construct and maintain a passenger railway along Carson street in the borough of South Pittsburg. Section 8th of the act declares that the company shall not be permitted to use and occupy any of the streets in said borough for purposes of their railway, until the consent of the council of the borough is first thereto had by ordinance duly passed, and "the said company shall keep so much of the streets of said borough, from curb to curb, as may be used and occupied by them, in perpetual good repair, at the proper expense and charge of the said company."

By ordinance of the 15th of August 1859, consent was given by the borough to the company to use and occupy Carson street, in accordance with said Act of Assembly, "provided also that said railroad company shall keep said Carson street in a good and sufficient state of repair from curb to curb, to the satisfaction of the committee on streets, appointed under the authority of said borough, and also keep said Carson street in a reasonable sanitary condition." The company accepted under this ordinance. By Act of the 2d of April 1872, the borough of South Pittsburg was annexed to and made a part of the city of Pittsburg.

A natural ravine of about one thousand feet in length extends from the top of Coal Hill down near to Carson street. In July 1874, a very heavy and extraordinary rain fell. It washed from and through the ravine, rocks, stone, gravel and earth, depositing them in Carson street for a distance of about one hundred feet in length and eight or ten feet in depth. Travel over the street, either by railway or otherwise, was thereby interrupted. The plaintiffs (after requesting the city authorities to remove these obstructions, and their refusal so to do,) caused them to be removed, and now claim to recover from the city the expense of that removal.

The question presented is: was the company bound to remove those obstructions at its own expense?

Prior to the Act of 13th of April 1859, Carson street was a public highway. The municipal authorities were bound to keep it in repair. It was their duty to remove all obstructions that might be placed thereon, by floods or otherwise, which interfered with the use or travel of the street. The manifest intention of the statute, and of the ordinance, was to transfer to the company the exclusive duty of keeping in repair all that portion of the street which lies between the curbs. Hence, in the words of the former, the company was to keep the street "in perpetual good repair," and in those of the latter, "in a good and sufficient state of repair." Neither one contains any intimation that the municipality was to repair under any contingency. But to make it more clear that the company assumed the whole duty of keeping the street in repair, the ordinance required it to be so kept "to the satisfaction of the committee on streets." This practically gave to the municipality the power of deciding on the goodness and the sufficiency of the repairs made by the company. Still further, the company was to keep the street "in a reasonable sanitary condition." Thus the company not only agreed to keep it in repair, but to keep it clean. These two obligations previously rested on the borough. By this agreement the company assumed them. Why shall it not fulfil them?

It is urged by the plaintiffs that this unusual deposit was not in contemplation of the parties, and, therefore, was not designed to be covered by the agreement. The first part of the proposition may be correct. The full extent of the injury may not have been...