Rogers v. Philadelphia Traction Co.

• Decision Date: 11 October 1897
• Docket Number: 41
• Citation: 38 A. 399,182 Pa. 473
• Parties: John I. Rogers v. Philadelphia Traction Company, Appellant
• Court: Pennsylvania Supreme Court

38 A. 399

182 Pa. 473

John I. Rogers v. Philadelphia Traction Company, Appellant

No. 41

Supreme Court of Pennsylvania

October 11, 1897

Argued March 30, 1897

Appeal, No. 41, Jan. T., 1897, by defendant, from judgment of C.P. No. 4, Phila. Co., March T., 1893, No. 109, on verdict for plaintiff. Affirmed.

Trespass for injury to plaintiff's property. Before WILLSON, J.

At the trial it appeared that the plaintiff owned the buildings 817 and 821 Walnut street, in the city of Philadelphia. The defendant owned a lot in the rear of plaintiff's properties fronting on Sansom street, and it erected thereon a power house in which it placed large and powerful engines and machinery, for the purpose of furnishing power to move its cable cars.

The issue was joined on a declaration which charged that the defendant, "contrary to its duty, so carelessly and negligently erected its power house and building and said machinery thereon, used and to be used, and so carelessly wrongfully, and negligently ran and operated the same for a long period of time, to wit; at divers times since or before the first day of January, 1888, to the first day of August 1890, that in consequence of the great and violent shaking, jarring, vibration, and concussion resulting from the said wrongful, negligent, and careless erection and construction of said power house or buildings and said machinery, and wrongful, careless, and negligent use and operation thereof, the said plaintiff was grievously annoyed, disturbed, and injured in the reasonable and ordinary enjoyment of his said stores and dwellings and the business therein carried."

The court overruled a demurrer to the statement. [1]

Defendant's points and answers thereto were as follows:

1. The defendant, by its letters patent in evidence and the acts of assembly by virtue of which the same were issued, had full authority to build, construct, and operate a cable for the traction of cars, and for that purpose to erect and operate upon its own land such stationary engines as are necessary to furnish power to said cable, without liability to the plaintiff for consequential damages to his property, the uncontradicted evidence being that no part of plaintiff's property has been taken, nor is any portion of the two buildings in contact, there being no use by the defendant of a party wall; but on the contrary, its wall having been built upon its own land, leaving a space between it and plaintiff's wall all the way from the bottom of the foundations to the top of the walls, so designed especially to prevent contact; the machinery and its foundations having been further isolated by being surrounded by an air space, and the best precautions known to the state of the art having been taken by the defendant to prevent the transmission of noise and vibration, excepting as they may be conveyed by the bed of the earth beneath all foundations or by the atmosphere. The verdict should be for defendant. Answer: Refused. [2]

2. The defendant is incorporated for the purpose of, and is engaged in, operating a public work, to wit: the carriage of passengers along the public streets in cars drawn by an endless cable. The necessities of this operation and the character of the business compel it to seek the heart of the city as much for the convenience of the public as for its own. Hence, the maintenance of a power house and stationary engines as near the center of its line through the center of the town as possible is in the direct line of its duty, and is part of the lawful enjoyment of its property and franchises; and, as it appears by the evidence, this was done without negligence or malice, it entails no legal liability. If unavoidable inconvenience falls upon neighbors, the same is damnum absque injuria. The verdict should be for defendant. Answer: Refused. [3]

3. The injury complained of is alleged to be exclusively due to the operation of the machinery, not to the construction of it or the power house. As its operation is lawful and without negligence, and conducted upon the defendant's own land, without contact or encroachment upon plaintiff's, there can be no recovery, and your verdict should be for defendant. Answer: Refused. [4]

4. This is not the case of a private individual maintaining upon his premises, in the heart of a dwelling quarter of the city, objectionable machinery which could be equally well placed in a more secluded spot, but it is the case of a cable railway, authorized by law to maintain a cable road in one of the most important and busy thoroughfares of Philadelphia, and as it appears that this machinery must necessarily be placed upon that thoroughfare, and has been built upon the company's own property and isolated from adjoining buildings, its maintenance is lawful. Answer: Refused. [5]

5. Under all the evidence the verdict should be for the defendant. Answer: Refused. [6]

The court charged in part as follows:

[I do charge you that if there was any such special damage resulting to the plaintiff from the operation by the defendant of the defendant's works in that building, whereby the plaintiff lost rent or suffered in some other ways that have been described, he is entitled to a verdict for the amount representing that injury.]

Verdict and judgment for plaintiff for $2,000. Defendant appealed.

Errors assigned were (1) overruling demurrer; (2-7) above instructions, quoting them.

Judgment affirmed.

David W. Sellers, for appellant. -- There is no liability for the necessary effects of the exercise of lawful powers by a corporation unless there be negligence, or the charter impose the same: Rex v. Pease, 4 Barn. & Ad. 30; Brighton Ry. Co. v. Truman, 11 Law Rep. Appeal Cases, 45; Railroad v. Yeiser, 8 Pa. 366; Strawbridge v. Phila., 2 Penny. 419; Keiser v. Mahanoy City Gas Co., 143 Pa. 276; Lippincott v. R.R., 116 Pa. 472.

George P. Rich, with him Henry C. Boyer, for appellee. -- Where a corporation has no right of eminent domain, the operation of its works causing physical injury to another's property is a nuisance for which an action will lie: Pottstown Gas Co. v. Murphy, 39 Pa. 257; Hauck v. Pipe Line Co. Ltd., 153 Pa. 366; Keiser v. Gas Co., 143 Pa. 276; Tipping v. St. Helen's Smelting Co., 116 Eng. Com. Law Rep. 608; Penna. Lead Co.'s Appeal, 96 Pa. 127.

Where a case of nuisance is sought to be made out, it is not a right question to put to the jury to find whether the place where the act was done was a proper and convenient one for the purpose, or whether the doing it in that place was a reasonable use by the defendant of his own land: Roskell v. Whitworth, 5 L.R. Ch. App. Cases, 459; Gullick v. Tremlett, 20 Weekly Repr. 358; Ball v. Ray, 8 L.R. Ch. App. 467; Heather v. Pardon, 37 L.T.R. 393; Sturges v. Bridgman, 11 L.R. Ch. Div. 852; Rhodes v. Dunbar, 57 Pa. 274; Huckenstine's App., 70 Pa. 102.

It is submitted that the principle applied in Gas Co. v. Murphy, 39 Pa. 257, and Hauck v. The Pipe Line Co., 153 Pa. 366, governs this case, and that the defendant is liable for the injury complained of, notwithstanding its works were erected on its own ground, in the best possible manner, and operated with the greatest care.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM and FELL, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

Defendant company's fourth point for charge was affirmed, and all the...