Commonwealth v. Dennison, 48 Pa. Super. 293

Commonwealth v. Dennison

48 Pa. Super. 293 | Pa. Super. Ct. | 1911

Opinion by

Henderson, J.,

The defendant was convicted of maintaining a nuisance on certain highways in the township of Jenner in the county of Somerset. From the evidence at the trial it appeared that the defendant was engaged in the transportation of mine props and lumber from a tract of land in the township named. In so doing he used a steam traction engine and three trucks attached thereto, the whole constituting a train nearly eighty feet long. The engine weighed about twenty-five tons and had a width of nine or ten feet. The trucks were narrower and when loaded weighed about seven tons each. The train passed over the road daily or frequently for a period of several months and its continuous use was one of the grounds of complaint set up by the prosecution. It was also shown by the commonwealth that the engine and trucks at times were permitted to stand in, or at the side of, the traveled highway to the obstruction of, or interference with, travel; that the trucks were liable to become detached from the engine in ascending hills to the peril of. travelers; that at the place where they were loaded the road was frequently obstructed by them so that citizens passing that way with horses and vehicles were deprived of the free and unobstructed use of the road; that at different times the engine broke down or trucks became detached on the road to the injury and prejudice of travelers. The court submitted to the jury two questions: first, was the use of the road in the manner disclosed by the evidence extraordinary and unreasonable; second, if not so, did the defendant in the management of his business place or permit his employees to put the engine and trucks in such places on the highway as obstructed the same and amounted to a nuisance; and the jury was instructed that unless the use of the roads of the township in the manner adopted by the defendant had become usual and *299common they would be justified in finding that the defendant had no legal right on the road with such a train. This instruction variously stated in the charge constitutes the subject of the first three assignments of error. It cannot be contended that the public highways of the commonwealth are free to the use of all kinds of motor appliances and machinery. It is a part of the common law that any obstruction which unnecessarily impedes the lawful use of a highway by the public is a nuisance and indictable as such: 2 Whar. Cr. L. 15; 4 Bl. Com. 167; Com. v. Miliman, 13 S. & R. 403. The right of one to use a public highway for travel or in the transportation of merchandise is not unrestricted. The use must be in a reasonable manner and consistent with its reasonable use by others having business thereon. Whether a use is unreasonable in a particular case and therefore a nuisance is ordinarily a question of fact to be determined by a jury: Allegheny v. Zimmerman, 95 Pa. 287. No one has a right to monopolize a highway or to use it in such a manner as to exclude other persons therefrom or to unreasonably interfere with their use of it. It cannot be declared as a matter of law that the appliances of transportation used by the defendant were such as might reasonably be used in the locality in which the defendant carried on his operations. The Act of June 30, 1885, P. L. 251, regulating the movement of machinery propelled by steam on the public roads and highways of the commonwealth, did not authorize the continuous use of such motors with trains attached. It is a restrictive statute. It recognizes the practice of moving such machinery on public roads but declares specifically how that shall be done. The general adoption of such machinery for thrashing; baling hay, cutting ensilage and like service renders the use of the highway necessary in moving from place to place for the prosecution of such work, but this is a very different use from that of daily trips to and fro on the same highway. An occasional use would not create a nuisance; daily use of the same portion of *300the road might do so. Moreover, the movement of a traction engine of the kind in ordinary use is a very different operation from that of the train which the defendant used. Country roads are not intended to be railway tracks. It was held in Com. v. Allen, 148 Pa. 358, that a conviction was proper for maintaining a nuisance where the defendants procured a traction engine by means of which they hauled stone from their quarry in two wagons making a train from fifty to fifty-five feet long which weighed when loaded from thirteen to fourteen tons, with which they made two trips daily from their quarry to the railroad station. The facts and reasoning in that case fully support the action of the court below in submitting the case to the jury.

In the fourth assignment exception is taken to the action of the court in rejecting evidence to show that it is the customary and usual method of hauling heavy freight over the public roads of the several townships and boroughs of the county of Somerset, such as telegraph poles, railroad ties, mine props, cement, stone, sand, bark, sand crushers and such like by the use of traction engines propelled by steam power and that this custom has been in vogue for several years last past. This offer was rejected on the ground that proof of a common and ordinary use of traction engines for hauling goods in other townships of the county was not admissible to affect the use of the roads in the township of Jenner. The offer might well have been refused because it was not proposed to show that the means of transportation referred to were like that used by the defendant and that the conditions were similar as to the highways, if the evidence were admissible on any ground. It was not a proposal to prove that a train was moved to and fro over limited portions of the highway for long periods.

The offer to prove, as set forth in the fifth assignment, the defendant’s instructions to his employees in regard to the manner of managing the engine and train of cars and his own conduct with reference thereto were irrele*301vant. He was not charged with violating the provisions of the act of June 30, 1885, and it was a matter of no consequence whether he instructed his employees as proposed or not. The question was, How were the engine and cars actually operated and to what extent did they obstruct the highway and prevent its free and ordinary use?

The objection that the commonwealth failed to show that the roads over which the train was moved were public highways is made under the sixth assignment of error, which asked the court for binding instructions. The point was not raised at the trial of the case and the whole course of the trial as disclosed by the record shows that the roads in question were recognized as public highways. Indeed, the points presented by the defendant concede the roads to be public roads and the testimony of several of the witnesses describes them as public roads. One of them is called the “Pittsburg Pike;” another, “The Township Road.” Aroadmaster was working on one of the roads along which the engine was moving and the supervisor of the township notified the defendant on different occasions that his use of the roads was unlawful. It would be unjust to the court to sustain this objection at this time, and we think the evidence is abundant that the roads where the engine was used are public highways.

Having carefully examined the case we have no doubt of the correctness of the rulings of the court and the charge to the jury.

The judgment is affirmed and the record remitted to the court below to the end that the sentence be carried into execution.