Postal Telegraph Cable Co. v. Keystone State Construction Co.

63 Pa. Super. 486 | Pa. Super. Ct. | 1916

Opinion by

Orlady, P. J.,

The record shows the following facts: The plaintiff, a public service corporation, had constructed on its right of way, a line of poles and strung wires for the transmission of telegraph messages.

The Philadelphia and Western Railway Company, a public service corporation, entered into a contract with the defendant construction company, to build its road bed between Villa Nova and Norristown, and in doing the necessary work of grading, by reason of the condition of the ground, it was obliged to resort to the method of rock blasting along Gulf Road.

After this work was started and some damage had been done to the plaintiff’s wires, in anticipation of further and more serious injury to its property, the plaintiff voluntqyily removed its established line of poles and wires from its right of way along Gulf Road “back a distance of 360 feet. In making this change (and after the completion of the construction work by the defendant company), the plaintiff restored the line of poles and wires'to their original location. In doing this work it expended the sum of $380.00 for labor, material, etc., as shown by an itemized account attached to the statement of claim. To be reimbursed for their expenditures this action of trespass was brought. A. demurrer was filed by the defendant and sustained by the court.

The record and argument shows that the defendant is an independent contractor; that the work done, was necessary to properly construct the roadbed of the railway company; that it wras not done in an improper or negligent manner, and that the railway company was exercising its right of eminent domain in the construction of its roadbed.

The plaintiff contends, that as the injuries to its property were the necessary and unavoidable results of the construction company’s method of doing the work, it has a good cause of action against it.

It was held in Hauck v. Pipe Line Co., 153 Pa. 366, where a corporation is clothed with the right of eminent domain, and is expressly authorized by law to construct its works and operate them, any injury resulting from such operation, without negligence and without malice, is damnum absque injuria: Stork v. Philadelphia, 195 Pa. 101.

As this case is presented we' only decide that the plaintiff is not entitled to recover in this form of action against this defendant.

The judgment is affirmed.