234 Pa. 223 | Pa. | 1912
Opinion by
It would have been well if this case had been submitted to a referee. The voluminous record discloses the difficulty which a jury would have in dealing with the questions of fact submitted to them. For some reason, not apparent, it was thought best to try the case before a jury and let it consider the almost innumerable items contained in the plaintiff’s claim and which had to be dealt with as matters of fact. The case was one peculiarly for a referee, and we are satisfied that counsel for both parties must be of that opinion now, if not prior to the trial before the jury.
The action was assumpsit brought by the City of Pittsburgh on July 22, 1907, to recover the cost of cleaning the streets of the City occupied by the tracks of the street railways operated by the defendant company during the annual periods ending January 31st in the years 1902 to 1907 inclusive. The claim of the City, as appears by the statement, is based upon the assumption by the defendant company of the obligations
The City, on February 25, 1890, enacted a General Ordinance relating to the entry upon and use of its streets by street railway companies or by companies operating passenger or street railways and providing regulations pertaining thereto for the public convenience and safety. Prior to this ordinance, the obligations of the railway companies in the use and cleaning of the streets were imposed by special ordinances which granted the right to such companies to enter upon and use the streets. Some of these ordinances required the railway company to clean the streets from curb to curb. By paragraph three of section one of the ordinance of 1890, the company was required to clean the' space within its tracks and one foot outside thereof, and by section three, railway companies were prohibited from entering upon and using the streets until after they had procured the consent of councils, “by an ordinance other than this one * * * , granting such rights to such companies,” and had accepted all the conditions and provisions of the ordinance of 1890.
In 1895 the City organized a department for cleaning its streets and thereafter this department cleaned the streets from curb to curb, including the part of the street between the street railway tracks and one foot .outside thereof which, under the General Ordinance of 1890, the defendant company was required to keep clean. This action was brought to recover the cost of
The aggregate of the plaintiff’s claim was $704,-946.40, alleged to be the cost of cleaning the streets for the five years ending January 31, 1907. The case was tried before a jury and resulted in a verdict for the plaintiff for $226,000. A motion was made for a new trial and also for judgment for the defendant non obstante veredicto. Both motions were overruled in elaborate opinions by the learned court below and judgment was entered on the verdict. From this judgment the defendant company has appealed.
There are thirty assignments of error supported by an elaborate argument of the learned counsel for the appellant company. Its contentions may be summarized as follows: (a) The statement of claim is insufficient in that it does not set forth in full the ordinances referred to in Exhibit A, or any contracts, agreements or leases connecting the defendant with any of the companies named in the exhibit, and hence the ordinances were not admissible in evidence; (b) the ordinances relating to street railways subject to the General Ordinance of 1890 were not admissible so far as they were not referred to in the exhibit; (c) the cost of expense of cleaning the streets shown by the evidence had no relation to the figures set forth in Exhibit B; (d) there could be no recovery without a prior demand on defendant to do the work, and it is not alleged that any demand was made; and (e) the system adopted in cleaning the streets was extravagant and the charges are excessive.
The statement avers that the defendant company by reason of operating and controlling the street railways and traction systems is responsible for the obligations and conditions attached to and forming a part of the
We think the statement, while not as definite as it should be, is sufficiently full and clear to advise the defendant of the particulars of the plaintiff’s claim, and of what the defendant company would have to meet on the trial of the cause. The exhibits contain a reference to the various acts of assembly and city ordinances authorizing the construction and operation of the street car systems in the city now controlled by the defendant, and also a reference to the clauses in the acts and ordinances imposing the obligation to clean the streets and setting forth in detail the work re
Had the defendant company demurred in the first instance it might have been difficult to sustain the statement. If deemed inadequate or insufficient under the practice act, or that it did not disclose clearly the plaintiff’s claim so as to enable the company to prepare its defense, the proper way to raise these questions was by a demurrer or a rule for a bill of particulars. Having pleaded the general issue and filed an affidavit of defense to the merits of the plaintiff’s claim which avers no defect in the statement, it is now too late to allege that the statement is insufficient in not setting out the claim in greater detail. The statement was sufficient and the evidence offered was properly admitted.
For the purpose of showing that the responsibilities which attached to various street railway companies under the General Ordinance of 1890 and under the
The court properly admitted in evidence, on the plaintiff’s offer, the two paragraphs of the affidavit of defense. They contained admissions which were adverse to the defense and tended to sustain the plaintiff’s claim. A party may prove his claim by showing the voluntary admissions of his opponent, whenever and wherever made, and whether verbal or in writing. Admissions against interest are always admissible in the trial of a case to sustain or defeat a cause of action. At any time or under any circumstances, if the admission is voluntarily made it may be given in evidence by the opposite party. Admissions in affidavits of defense are not an exception to the general rule. The purpose of an affidavit of defense is primarily to prevent a summary judgment; but it may become evidential by containing admissions or statements adverse to
Paragraph three of the General Ordinance of 1890 provides that a passenger street railway company “shall keep clean and maintain such pavement in good order, condition and repair so long as its tracks shall be used.” The acceptance of this ordinance imposed upon street railway companies an absolute duty to clean that portion of the streets between its tracks and one foot outside thereof. The obligation is definite and mandatory. When a company obtains municipal consent to enter and operate a railway upon the streets of a city it is charged with notice of its duty to keep the streets clean as required by the ordinance. It assumes the performance of this duty without further notice or request from the city. The ordinance itself is notice to the company that it must keep the streets clean. Notice of the necessity for the observance of the ordinance and of cleaning the streets is brought to its attention every day. It sees the municipality cleaning those parts of the streets which the ordinance requires the company to clean, and, therefore, there was no necessity for notice to the defendant company to perform its duty in this respect. He who assumes the performance of a fixed duty at a definite time voluntarily imposed cannot justify a neglect or failure on
This is not a claim for the cost of paving or repaving a street where a prior duty devolves upon the municipality of determining the character of the pavement and the time when it shall be laid. The municipal discretion in such matters must be first exercised before the party is required to perform the service. In such cases it is necessary that notice to act be given the party whose duty it is to pave the street. The cases cited by the appellant are of this character, and were determined upon facts which required a prior notice to impose responsibility upon the defendant company.
We have held that it is the practice in this state to send out with the jury calculations and statements of a claim in the trial of a scire facias, in an action of replevin, and in an action of trespass for mesne profits. There has never been any doubt, and it has been ruled time and again, that in an action of assumpsit to recover moneys alleged to be due the plaintiff that either or both parties may send out with the jury a calcula
The fact that the cost of cleaning the streets as shown by the evidence was not as large as that set' forth in Exhibit B, or that the system adopted in clean
We have dealt with the controlling questions in the case without taking up seriatim the thirty assignments of error. The court committed no reversible error in the conduct of the trial, and we see no reason for interfering with the judgment. Under the pleadings, evidence and admissions in the case, there is no doubt of the liability of the defendant company for the cost and expenses incurred by the City in cleaning the parts of the streets between the railway tracks and one foot outside thereof (the obligation imposed by the General Ordinance), and the only real question in dispute on the trial was the amount of the expenses legally incurred by the City in doing the work assumed, but not performed, by the defendant company.
The judgment is affirmed.