171 Pa. 610 | Pa. | 1895
Opinion by
The plaintiff was nonsuited in the court below on the ground that the street was not paved in compliance with the ordinance enacted by the select and common councils of the city in March, 1890, nor in accordance with the contract entered into between the city and the use plaintiff on the 14th of May of that year. The ordinance and contract referred to called for the paving of Eighteenth street from Peach street to Liberty street “ with asphalt from curb to curb.” The street between these points was of the width of thirty-two feet and the center of it was occupied by the tracks of the Erie City Passenger Railway Company, which by its contract with the city was bound to pave, repave, and keep in repair, the space between its tracks, and one foot in width outside of each rail. The space which the railway company was thus required to maintain was of the width of seven feet, and this deducted from the entire width of the street between the curbs left twenty-ñve feet of it to be maintained by the city. If the railway company neglected or refused to comply with its contract in regard to the paving, repaving, and repair of the street, the city was authorized by it to cause the required work to be done at the company’s expense. The company was also bound in paving, or repaving, to lay the same kind of pavement used in the balance of the street, unless the contracting parties should otherwise agree. After the contract was made with the use plaintiff for the construction of the pavement in question the city agreed that the railway company might pave with Medina stone so much of the street as it was bound to maintain. The use plaintiff acquiesced in this arrangement and under its contract with the city paved the balance of the street with asphalt. The work
Judgment reversed and procedendo awarded.