Mellick v. Pennsylvania Railroad, 17 Pa. Super. 12

Mellick v. Pennsylvania Railroad

17 Pa. Super. 12 | Pa. Super. Ct. | 1901

Opinion by

William W. Porter, J.,

The plaintiff had a contract with the county commissioners to construct a short piece of road forming the approach to a new bridge over the Susquehanna river at Bloomsburg. The work consisted almost wholly of filling in between the abutment of the bridge and the bank of the defendant railroad. The construction, thus contracted for, was to take the place of part of an old public road, called the Ferry road, which ran under the railroad, then parallel to the railroad embankment for a short distance and thence to a ferry landing. The plaintiff entered upon his work and drew the material to be used in the fill, from a point on the other side of the railroad, using the Ferry road and passing under the railroad bridge. This made but a short haul. He had proceeded thus but a few days when the railroad company, as he alleges, emptied several carloads of earth, old railroad ties, etc., over the side of their bridge, making the Ferry road wholly impassable and compelling the plaintiff to procure materials from a new source at a greater distance and at a greater cost. This conduct on the part of the defendant is alleged to be tortious, and to sustain the verdict rendered in favor of the.plaintiff.

The first proposition advanced by the appellants is, that the *18plaintiff’s work, in making the new piece of road, necessarily-involved an obstruction of the Ferry road; that the act of assembly of June 13, 1836, P. L. 558, requires that the road vacated shall not be stopped during the construction of the new road; that the plaintiff was thus violating an act of assembly and that, even if he was injured by the defendants’ act of obstructing the old road, he was injured only while attempting to do an illegal act. The court below held, in effect, that the provision of the act of assembly, in the main, contemplated the laying out of new roads and the vacating of old ones in cases where the two were separate and apart; but that where the construction of the new road involved necessarily a temporary obstruction of the old one, the provisions of the act were sufficiently elastic to permit the work to be done. In the case before us, it was an impossibility to construct the approach to the bridge without crossing the old Ferry road at right angles and with an embankment. If the provisions of the act of assembly are applicable in strictness to such a case, that which was undertaken was practically impossible of performance; and all improvements of like kind, which involve a temporary obstruction of an old road during the building of a new one, be it but for a moment, would be impossible of construction. This would be giving an effect to the act which was not in contemplation by its framers, as we believe. The construction to be given must be such as not to result absurdly nor in injury to the public whose convenience and benefit are intended to be guarded. The act does not apply to temporary or partial obstruction absolutely necessary to the progress of the public improvement, but to a total shutting up or stoppage of the old road. It is to be observed that the evidence for the plaintiff was that he maintained the Ferry road in a passable condition while pursuing the work of constructing the new road; that the Ferry road was in such condition when the defendant company cut him and the general public off from the use of. the Ferry road; that his method of working was such that it would have so remained until the filling in of the new road was completed. Testimony for the defense, of course, denied these» matters of fact, but they went to the jury with the result that the plaintiff’s allegations were sustained. Thus, even if the construction of the act be wrong, the verdict may be regarded as a finding that the plain*19tiff had not in fact shut up or stopped the Ferry road, but had maintained it in passable condition, and, therefore, that he had not violated the act of assembly.

The defendant company further claims that the measure of damages was the cost of the removal of the obstruction alleged to have been placed by the defendant company in the Ferry road to the injury of the plaintiff. The plaintiff admits, on cross-examination, that the cost of such removal would have been, perhaps, $5.00 or $6.00, but he also adds that he was warned by the representatives of the defendant company not to attempt to remove or level the obstruction, and notified that they would persist in maintaining the obstruction. We think the learned judge of the court below was right in his view of the measure of damages, based upon the case of Knowles v. Penna. R. R. Co., 175 Pa. 624. An obstruction in that case was placed in a public road by a railroad company. The plaintiff was hauling dirt and stone, under a contract, for grading and building purposes. By the obstruction the plaintiff’s cost of hauling was largely increased because of the necessitated change of route. This was held to be a loss beyond that suffered by him in common with all others affected by the nuisance. The court say: “ It is clear, therefore, that the plaintiff suffered material loss or damage by reason of the obstruction which was the original subject of complaint in this action.”

The defendant company claims that it had the right to obstruct the old Ferry road because it was on their right of way. The evidence is not conclusive that it was on their right of way. Evidence was submitted by the plaintiff showing that it had been a public road in public use for more than thirty years. The learned trial judge was right in saying that the rights of the defendant company over its right of way did not extend to interference with the public road, although at the time of its obstruction the road was inchoately vacated. The point of charge, which raised this question, might have been refused entirely. We cannot see that any injury was suffered by the defendant company in the explanatory answer made to the point.

Reference to the fact that an injunction was served upon the defendant company is found in the cross-examination of the witnesses for the plaintiff. The defendant company offered in *20evidence the record of the injunction and it was rejected, except for one purpose. The injunction proceedings were not between the same parties. The court admitted the record to prove' the date of the injunction, but for no other purpose, and we think properly. This being so, the defendant company was not entitled to the affirmance of a point asserting that the company could not be held responsible for doing no further work on the Ferry road pending the injunction.

The defendant company complains that the court below, in charging the jury upon the matter of damages, referred to the amount claimed in the statement of claim, and that this is in violation of the rule laid down in Reese v. Hershey, 163 Pa. 258, in which the trial judge was reversed for reading the plaintiff’s statement to the jury, including the averment of damages. We do not think that the present case comes within the authority cited, although the stress of the opinion is there laid upon the reading of the amount of the damages claimed: Reel v. Martin, 12 Pa. Superior Ct. 345. The statement of claim, in this case, is not well drawn in that it claims a sum of money with interest from a given date. The action is in trespass. The amount of the verdict is approximately the aggregate of the amount of specific damages claimed, plus interest to trial. Interest cannot be recovered as interest, but interest may be allowed as damages: Penna., etc., R. R. Co. v. Ziemer, 124 Pa.-571. The evidence for the plaintiff, if believed by the jury, was sufficient to support a recovery of damages, but not in excess of the gross amount claimed in the statement. There was some testimony which tended to stimulate the jury to the giving of excessive punitive or exemplary damages. The trial judge in referring to the amount claimed as damages, was putting a limit and a check upon the jury. It did not have a tendency to “ get figures and amounts into the jury’s minds without evidence.” See Reese v. Hershey, supra. There was evidence in the case to warrant the recovery of exemplary damages, and the statement of claim setting forth the facts generally, was broad enough to let in the evidence: Kennedy v. Erdman, 150 Pa. 427. The testimony, if believed, warranted the finding that the stoppage of the Ferry road by the railroad company was intentional; that its purpose was to prevent the plaintiff from going forward with his work; and that the motive was the prevention of -a *21grade crossing which would follow the construction of the approach to the bridge.

There remains but one other question, namely, whether there was error in permitting the plaintiff to testify to statements made to him by Ridgely and Kromer. The first was the local supervisor of the railroad, and the latter the conductor of the gravel train. The former took his instructions, in regard to the dumping of the material by the railroad upon the public road, from the assistant engineer of the company. The declarations testified to by the plaintiff and others were when the defendant company’s representatives were engaged in obstructing the highway for the railroad company, and the conversations were held within a short distance of the work itself. The declarations were made by the representatives of the company for the doing of the particular work complained of: Baker v. Westmoreland & Cambria Natural Gas Co., 157 Pa. 600. We think that no error was committed in admitting the testimony.

We can find no reversible error committed and, therefore, the judgment is affirmed.