361 Pa. 181 | Pa. | 1949
Opinion by
In 1942, when the minor plaintiff, seven and one-half years old, was injured, Washington Avenue, between Fourth and Fifth streets, in Philadelphia, was 100
The minor plaintiff, while crossing the Avenue from the south to the north side, stumbled or tripped over an exposed two inch iron pipe which extended across the dummy about a foot above the ground and which a witness testified had been there twelve years. For the injuries sustained the minor has judgment against the railroad company and the City of Philadelphia who have appealed.
The verdict is adequately supported by evidence; there was no error in refusing a new trial; the single question is whether defendants have shown a legal defense from which it would follow, as they contend, that the minor plaintiff was a trespasser.
In the eighteen-thirties the legislature authorized the incorporation of a railroad company with power to construct and operate a railroad in what was then the District of Southwark. Such a company was organized and constructed a railroad in what was part of the bed of Washington Avenue.
Section 22 of. the Act of April 2, 1831, P. L, 353, 361, authorized the Governor to incorporate the Southwark Railroad (a predecessor of the Pennsylvania Railroad Co.), and authorized the railroad “to construct a railroad, of one or more, tracks, from the river Delaware, in the district of Sputhwark, and thence through the county of Philadelphia to Broad and Cedar-streets, in such direction as they shall deem best to connect with the termination of the city rail-road: Provided, That said company shall be, and are hereby empowered, to construct a rail-road from Broad-street, in the county of Philadelphia, to the river Schuylkill.” This authorization was subjected by section 22 to the restriction in section 14. providing, “. . . it shall be the duty of the said company, to construct and keep in repair good and sufficient passages across the. said rail-road, where any public roads shall intersect and cross the same, so that the passage-of carriages, horses, persons and cattle along- the said roads shall not be obstructed; and also when the said rail-road shall- intersect-any farm, to provide and keep in repair a suitable passage for the use of said- farm.”
The defendant railroad company contends that with the sanction of the legislature it “has appropriated a portion of- the street for its own exclusive use . . .”; that the legislature by requiring the railroad to provide crossings at street intersections intended a grant of exclusive right of occupancy between intersections; that it “had appropriated the center of the street exclusively to its purposes by constructing its tracks upon ties and
We must reject the contention that by the manner in which it, constructed and used its railroad the defendant “appropriated” for its exclusive use the rights of the public in that part of Washington, Avenue. The presumption is just the contrary in the absence of evidence showing that such right was vested in the railroad company. The extent of the grant to construct and operate a railroad in the existing street is limited by familiar principles to what is expressly granted; nothing in derogation of public user is implied: Com. v. Erie etc. R. R., 27 Pa. 339 (1856); Jones v. Erie & Wyoming R. R. Co. 144 Pa. 629, 23 A. 251 (1891), and same case in 169 Pa. 333, 32 A. 535 (1895); Pa. Schuylkill etc. R. R. Co. v. Phila. etc. R. R. Co., 157 Pa. 42, 27 A. 683 (1893); Reading v. United Traction Co., 215 Pa. 250, 64 A. 446
The city, in its appeal, adopts the submission made by the railroad company “that the construction of this right of way by the railroad company constituted an actual taking of a portion of the highway; that by reason thereof the railroad company was charged with the sole responsibility for its maintenance; that the City of Philadelphia ha.d no right to enter upon the right of way, remove the iron pipe from the dummy . . .” Certainly what was withheld from and was not granted to the Railroad Company remained available to the public; if the railroad company was not by express words authorized to prevent this min'or from crossing Washington Avenue, the city remained liable at least to see that its duties to the public were performed; for 12 years the city had notice of the condition of the dummy at the point of the accident and apparently did nothing about it.
The judgments are affirmed.
These distances are taken from a plan in the record. There is also an admission that “Washington Avenue between 4th and 5th Streets, where the accident in this case occurred, is on the city plan as a plotted and open street upwards of 120 feet wide, the external lines of which lie respectively north and south of the right of way of the defendant railroad company, at that point,”
The record shows that Washington Avenue, originally called Prime Street, was opened in 1790 and was in 1831 still a public street.