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argued by counsel, and upon

consideration the

From a decree dismissing the bill, plaintiff Section 2 of the act of 1889 is as follows: appeals. Reversed.

"Companies incorporated under the proviBill in equity for an injunction to restrain

sions of this act for the supply of light, heat defendants from interfering with a conduit

and power, or any of them, to the public by under the sidewalk of the property of Vin

electricity shall, from the date of the letters cent, Scott & Co. Cross-bill for a mandatory

patent creating the same, have the powers injunction for the removal of the conduit.

and be governed, managed and controlled as From the record it appeared that Vincent,

follows: Every such corporation shall have Scott & Co., by their contractors, Kerr & Fox,

the authority to supply light, heat and power, were making an excavation for a vault under

or any of them, by electricity, to the public their sidewalk, and, in doing so, caused a

in the borough, town, city or district where part of the plaintiffs' conduit to fall and

it may be located, and to such persons, partbreak. Plaintiffs claimed a vested right to

nerships and corporations, residing therein or maintain a conduit under the sidewalk. The

adjacent thereto, as may desire the same, at defendants denied this right.

such prices as may be agreed upon, and the

power also, to make, erect and maintain the The following is the decree of Young, J., of

necessary buildings, machinery and apparatus the court below:

for supplying such light, heat and power, or “And now, to wit, July 13, 1906, this cause

any of them, and to distribute the same, with came on to be heard at this term, and was

the right to enter upon any public street,

lane, alley or highway for such purpose, to thereof it is ordered, adjudged, and decreed

alter, inspect and repair its system of disas follows: (1) The preliminary injunction entered October 24, 1905, is dissolved. (2)

tribution: provided, that no company which The original bill of complaint is dismissed.

may be incorporated under the provisions of

this act, shall enter upon any street in any (3) The Allegheny County Light Company,

city or borough of this commonwealth until the defendant in the cross-bill, is ordered and directed, within 30 days from the date hereof,

after the consent to such entry, of the counto remove its conduit from beneath the side

cils of the city or borough in which such

street may be located, shall have been obtainwalk on the west side of Beatty street, from

ed." In locating and installing their systems Penn avenue to Kirkwood street, in the city of Pittsburg. (4) That the Allegheny County

of distributing electricity electric light compaLight Company pay the costs of this case."

nies are given by this section the right of Argued before MITCHELL, O. J., and

eminent domain upon public streets, lanes, alFELL, BROWN, MESTREZAT, POTTER,

leys, or highways outside of city or borough ELKIN, and STEWART, JJ.

limits, and, within such limits, they may use

the streets with municipal consent. This is David A. Reed and James H. Beal, for

a limited right of eminent domain; the limiappellant. Levi Bird Duff and L. B. D.

tation upon it being found in the words of the Reese, for appellees.

grant of it. Brown v. Electric Light Co., 208

Pa. 453, 57 Atl. 904. The third section of the BROWN, J. In determining whether the act of 1889 provides that "any association of Allegheny County Light Company has the persons or corporations heretofore engaged in right to construct and maintain conduits un. the business of supplying light, heat and powder the sidewalks of the streets of the cityer, or any of them, by electricity, under color of Pittsburg for its wires, we must turn to of a charter or letters patent of this commonits charter. It was originally incorporated wealth, issued under the provisions of the act March 6, 1880, under the act of April 29, to which this act is a supplement, upon ac1874 (P. L. 73). Assuming that it had the cepting the provisions of this act by writing power under its charter to furnish electric under seal of the company, filed in the office light to the public, the city of Pittsburg, by of the Secretary of the commonwealth, and ordinance of October 31, 1881, authorized it filing therewith its letters patent or charter, "to erect and maintain poles and wires for which shall be a surrender and acceptance the purpose of conducting electricity to be thereof, shall thereupon be a body corporate used for lighting purposes, on such streets, hereunder and be entitled to and possessed of lanes and alleys of this city as may from all the privileges, immunities, franchises and time to time be required by said company for powers conferred by this act upon corporathe purpose aforesaid." The poles to be tions to be created under the same, and all erected were to be of such size and shape and the property, rights, easements and privileges located in such places as the city engineer belonging to said associations and corporamight direct.

tions, theretofore acquired by gift, grant, conBut the appellant was not authorized un veyance, municipal ordinance or assignment, der its original charter to supply light by or otherwise, upon such acceptance as aforeelectricity (Appeal of Scranton Electric Light said, shall be and hereby are ratified, ap& Heat Co., 122 Pa. 154, 15 Atl. 446), and, proved, confirmed and assured unto such achaving surrendered its original charter, let. ceptors and corporations, with like effect and ters patent were issued to it on May 29, to all intents and purposes, as if the same 1889, under the act of May 8, 1889 (P. L. had been originally acquired by and under 136), which is a supplement to the act of 1874. the authority of this act, and such company

or corporation shall thereafter be governed by consent is obtained to use the streets, the the provisions of this act.” The “rights, ease right is to use them in altering any system of ments and privileges” which this appellant distribution. The alteration requires no conhad acquired from the city of Pittsburg by sent, though in making it the company may municipal ordinance under its first charter be subject to proper police regulations. were ratified, approved, and confirmed with Turning to the ordinances of November 21, like effect as if they had been acquired under 1892, November 25, 1892, and May 22, 1895, the act of 1889. They are to use the streets, nothing can be found in them prohibiting a lanes, and alleys of the city for the purpose

change by the appellant from the pole to the of distributing electric light. The ordinance conduit system of distributing electricity. is municipal consent to appellant “to enter On the contrary, each ordinance encourages, upon any public street, lane, alley or high

and, as to a portion of the city, requires, the way" within the city of Pittsburg for the pur

adoption or substitution of the conduit syspose stated. This includes sidewalks, which

tem. Among the provisions relating to the are parts of the streets; and that the conduit

adoption or substitution of this system is secof appellant was placed under the pavement

tion 2 of the ordinance of November 25, 1892, in front of appellees' property is not in itself

which is as follows: "Every such corporaa ground of complaint in this proceeding.

tion, co-partnership, or individual before enThe city has the same control over its side

tering upon any of the streets, lanes, alleys walks that it has over the driveways. MC

or highways, aforesaid, for the purpose of Devitt et al. v. People's Nat. Gas Co., 160

constructing thereunder, any conduits, subPa. 367, 28 Atl. 948; Provost v. Water Co.,

ways, apparatus, devices or means as afore162 Pa. 275, 29 Atl. 914.

said for transmitting, conducting or conveyThe right granted by the ordinance of 1881, it is conceded by counsel for appellees, is un

ing electricity shall file in the office of the

department of public works a full plan showlimited as to streets, but it is contended that

ing the location, size and details of such it was for a specific purpose, viz., “to erect and maintain poles and wires for the pur

proposed conduits and subways, and all such

plans shall be subject to the approval of the pose of conducting electricity to be used for

chief of the department of public works, or, lighting purposes," and therefore the only privilege that exists is the one clearly and

of the committee on public works, and no expressly given. This would mean that the

corporations, co-partnerships, or individuals city, in giving the right to erect poles and

shall enter upon any of the streets, lanes,

alleys or highways aforesaid, or occupy or wires, impliedly forbade the use of any other system; but it could not so restrict the right

do any work upon the same until the said of the company to change its system, for the

plans have first been approved in writing by

the said chief of the department of public supreme power of the state gives it the right to "alter" it. True, the permission is to

works, or, the committee on public works, or, erect and maintain poles and wires, but at

as may be directed by councils, in accordance the time it was given they constituted the

with the provision of section seventh." The means universally used in distributing elec

appellant offered in evidence the plan for its tricity; and with what must be regarded as

conduit system, which, on July 13, 1899, was general permission to the appellant to use

approved, in writing, by E. M. Bigelow, dithe streets for its corporate purposes there

rector of the department of public works. went, by the express words of the act of The court found that other provisions of the 1889, the right “to alter, inspect and repair

ordinances had not been complied with, and, its system of distribution.” In placing its having been of opinion that compliance with conduits under the sidewalk in front of ap them was a condition precedent to appelpellees' property, the appellant simply alter lant's right to construct its conduit system, ed its system of distribution, and in doing so dismissed its bill and granted the relief askit but exercised a right with which the city ed for in the cross-bill. Whether other procould not interfere, unless in the exercise visions of the ordinances are reasonable poof it there was a violation of reasonable po lice regulations, with which the appellant lice regulations, adopted by the city for the was bound to comply before altering its sysprotection of persons and property from the tem in constructing its underground conduits, danger of the new system.

we need not now determine. In the year The error into which the learned court be 1899 it constructed the conduit of which the low fell was in holding that the "company's appellees now complain. The city of Pittssole authority for the occupancy of the bigh- burg has never complained of its construcways of the city beneath the surface was tion. The twenty-fourth finding in the crossthe ordinances of November 21, 1892, Novem- | bill is: “The Allegheny Cou Light Comber 25, 1892, and May 22, 1895." . The au pany has not been ordered by the director thority was the ordinance of October, 1881, of the department of public works of the city and the ordinances subsequently passed re of Pittsburg to take up this conduit or to lating to conduit systems cannot affect the relay it." The finding immediately precedright of the company to alter its original sys ing it is: “It does not appear that any comtem, unless in altering it reasonable police plaint has been made or that any notice has regulations are not complied with. After been given or that any action has been taken

in regard to the construction or maintenance Cars were passing over the crossing every of its conduit by Vincent, Scott & Co., or any few seconds. There are two tracks on the of their predecessors in title from the time avenue and two on Seventh street, and these of the construction of the conduit in the tracks are connected by curves, and cars pass summer of 1899 until the fall of 1905." from the street to the avenue. There was a

With no complaint either by the municio rule of the company, known to the plaintiff, pality or the appellees and their predeces that when a car had passed from the street sors, as private owners, of the construction to the avenue, and was standing to receive or of the conduit or of its use for more than discharge passengers, the car following it six years as a part of appellant's large and should not enter on the curve. After reachexpensive system, equity will not now decree ing the crossing he waited until it was clear. its removal. The city has never made com When he started, a car which had come from plaint of any disregard or violation of police Seventh street was standing on the avenue, regulations in connection with its construc and the car following it, which struck him, tion or use, and it is now too late for either was standing diagonally across on the far it or the appellees to ask, for the first time, side of Seventh street. He walked on the that the appellant be interfered with in ex crossing to the narrow space, less than ercising what, in this proceeding, must be 442 feet wide, between the straight tracks, regarded as a vested right.

and stopped, looked at the car on Seventh The decrees of the court below are revers street, saw that it was standing, looked up ed. The cross-bill is dismissed, and it is or and down the avenue, and went on. He was dered, adjudged, and decreed that appellant's struck when on the far side of the curved bill be reinstated, and the appellees are per track by the car from Seventh street, which petually enjoined from interfering with, dis had been started without a signal being given placing, removing, destroying or tampering and was running very rapidly around the with the subway and conduit of the appel curve. lant mentioned in the bill, and from exca

From the plaintiff's testimony it appears vating, digging, or undermining under or that the crossing was an exceptionally danabout the said conduit, so as to interfere gerous one. There were four tracks to watch with it, either by themselves, their agents, -two straight ones and two that curved from servants, or employés, the costs on this appeal

the street. There was no safe place to stop and below to be paid by the appellees. This

until all the tracks had been crossed. He exdecree is without prejudice to the right of

ercised due care before starting. The car the appellant to recover at law any damages standing on the avenue blocked the way of which it may bave sustained.

the car standing on Seventh street, and was an assurance to him that the latter would not

immediately start. He halted in the narrow (216 Pa. 595)

space between the straight tracks in the midARMSTRONG v. CONSOLIDATED TRAC

dle of the avenue, and saw that the car on TION CO.

Seventh street was still standing, and he was (Supreme Court of Pennsylvania. Jan. 7, 1907.)

struck as he left the curved track. The weakSTREET RAILROADS — INJURY TO PERSON ON ness of his case is that, between the time he TRACK.

looked at the Seventh street car and the time In an action against a street railway company to recover for injuries received while cross

he was struck by it, it must have moved ing the track at night, the question of contribu from a full stop 65 feet on a curve, and durtory negligence held one for the jury.

ing this time he had only to glance in another [Ed. Note.-For cases in point, see Cent. Dig. direction and walk about 12 feet. It is highly vol. 44, Street Railroads, 88 251-257.]

improbable that his recollection was accurate Appeal from Court of Common Pleas, Al as to all the facts detailed, and that the aclegheny County.

cident happened in the way described by him. Action by William P. Armstrong against It is not, however, impossible that it bappenthe Consolidated Traction Company Judg ed in this way, and the court would not bave ment for plaintiff. Defendant appeals. Af been justified in withdrawing the case from firmed.

the jury on the ground that he stepped in Argued before MITCHELL, C. J., and front of a moving car, which he either saw FELL, BROWN, MESTREZAT, POTTER, or should have seen. He was not proceeding ELKIN, and STEWART, JJ.

heedlessly, but with care, in a situation that James C. Gray, Clarence Burleigh, and was both dangerous and confusing. It has William A. Challener, for appellant. Rody been repeatedly said that the rule stated in P. Marshall and Thos. M. Marshall, for ap

Carroll v. Penna. Railroad Co., 12 Wkly. No. pellee.

Cas. 348, is in its nature applicable only to

clear cases, where the conclusion of negliFELL, J. The question raised by this ap gence is irresistible. It was said by the peal is whether the case should have been present Chief Justice in Ely v. Pittsburg, etc., withdrawn from the jury on the ground of Railway Co., 158 Pa. 233, 27 Atl. 970: "Stopcontributory negligence. The plaintiff was ping is opposed to the idea of negligence, and injured at night, while crossing Penn avenue unless, notwithstanding the stop, the whole at Seventh street, in the city of Pittsburg. evidence shows negligence so clearly that no

other inference can properly be drawn from tiff cannot recover if by his own conduct he it, the court cannot draw that inference as a also contributed to the happening of the acconclusion of law, but must send the case to cident. As we read the testimony, he did the jury."

this when he approached the point of interThe judgment is affirmed

section so rapidly, and drove so close to the

track before stopping or turning the head oť (216 Pa. 593)

his horse. There was ample room to permit

the turning of the horse and buggy into the MCCLELLAND V. PITTSBURG RYS. CO.

space between the curb and the first track as (Supreme Court of Pennsylvania. Jan, 7, 1907.)

the plaintiff drove out into the street had STREET RAILROADS–COLLISION WITH VEHICLE he so desired. This was the course he finally -CONTRIBUTORY NEGLIGENCE. Where the driver of a vehicle about to cross

adopted, but be hesitated a trifle too long the tracks of a street railway company drives in its execution. If he had stopped or turnso close to the track as to be hit by an ap ed an instant sooner he would have been proaching car while turning into the space be

safe. The buggy seems not to have been at tween the track and the curb in an endeavor to avoid the car it constitutes contributory

any time actually upon the track, and, when negligence,

the plaintiff was caught, it was by reason of [Ed. Note.-For cases in point, see Cent. Dig. being too close to the car, rather than by vol. 44, Street Railroads, 88 210-216.]

being in front of it. Appeal from Court of Common Pleas, Alle We see no error in the refusal of the learngheny County.

ed trial judge to take off the nonsuit, and the Action by R. W. McClelland against the judgment is affirmed. Pittsburg Railways Company. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before MITCHELL C. J., and

(216 Pa. 684) FELL, BROWN, MESTREZAT, POTTER,

SMALL V. PITTSBURG RYS. CO. ELKIN, and STEWART, JJ.

(Supreme Court of Pennsylvania. Jan. 7, 1907.) James Balph and R. A. Balph, for appellant. James C. Gray, Clarence Burleigh, and

STREET RAILROADS–NEGLIGENCE.

In an action against a street railway comWilliam A. Challener, for appellee.

pany to recover for personal injuries to plaintiff

from being struck by a piece of wood torn from POTTER, J. This action was brought to a telephone pole by a runaway electric car, recover damages for personal injuries caused evidence of defendant's negligence held insuffiby a collision between the buggy in which

cient to go to the jury. appellant was riding and one of defendant's Appeal from Court of Common Pleas, Alcars. The accident occurred just as plaintifr | legheny County. was driving out the driveway of a private Action by Frank E. Small against the residence, intending to cross directly over Pittsburg Railways Company. Judgment for the track. It appears from the evidence that plaintiff, and defendant appeals. Reversed. he saw the car approaching at some distance, Argued before MITCHELL, C. J., and and, keeping his eye upon it, he allowed his | FELL, BROWN, MESTREZAT, POTTER, driver to proceed at a slow trot. Just as the ELKIN, and STEWART, JJ. head of the horse reached the first rail, he James O. Gray, Clarence Burleigh, and concluded that the car was too near, and

William A. Challener, for appellant. John was coming too fast, for him to cross the C. Haymaker and Thomas E. Finley, for track in safety. He then directed the driver

appellee. to turn the horse to the right into the space between the track and the curb, so as to POTTER, J. This was an action of tresavoid the car; but in doing so, the wheel pass brought by Frank E. Small against the turned sharply under the body of the buggy, Pittsburg Railways Company to recover and apparently swung or pushed it so far damages for an injury alleged to have been around as to bring the hind wheel in contact sustained by reason of the negligence of the with the car as it passed.

defendant. From East McKeesport to WilThe testimony shows that the car was run. merding the street railway of the defendant ning at an excessive rate of speed, and that company runs on the public street, for a dis. the horse was trotting as it approached the tance of a mile and a quarter, upon a grade track. Presumably the fact that the horse of 6 per cent. At the foot of the slope is was trotting made it more difficult to stop the Wilmerding station of the Pennsylvania or turn when it became necessary to do so, Railroad. The tracks of the street railway before the buggy reached the track. At any terminate at that point, directly across the rate, if the driver had approached the track street from the station. On the evening of more slowly, or had stopped at a point a few January 29, 1902, shortly before 8 o'clock, feet further from the track, the collision need the plaintiff, who was standing on the stanot have occurred. Undoubtedly the defend tion platform, was struck by a piece of ant company was negligent in running the car wood broken from a nearby telephone pole. at so bigh a rate of speed, but, even then, A car of defendant company had gotten beunder the well-settled rule of law, the plain. | yond control while coming down the Wil.

merding hill and bad left the track at the just brushed the sand off when it was reterminus, crossed the street, and collided volving in the backward motion. I kept it with the telephone pole, breaking it and on reverse all of the way, and, when I got to running against the wall of the railroad sta the stone quarry, the trolley jumped off. tion. A fragment of the broken pole was Then I was in darkness from there down to thrown against plaintiff, and inflicted seri. the foot of the hill, and kept using all force ous injuries. The testimony shows that the from there on down to the foot of the hill, car escaped from control while coming down expecting every minute I would get control the bill by reason of the slippery condition of it again, but I didn't until I ran into the of the tracks upon the grade. Rain bad station." Fryan, the motorman, bad many fallen, which froze to the rails as it fell. years' experience, and had been engaged two The car was in good condition, and properly years and a half on that particular line. He equipped with brakes, and was provided had brought his car up the bill over the same with sand; but the tracks were so incased track only a little while before without trou. in ice that, when the motorman attempted ble or difficulty; and, after proceeding a to apply the sand, the wheels would not take short distance along the road, he changed hold, even when reversed. In consequence cars and started back again towards the the car slid down the grade.

foot of Wilmerding hill. Upon the trial, as the court said, there was The evidence shows that before entering no evidence of improper brakes, machinery, upon the down grade he tested his brakes, or appliances. The only matter which the found they were in good condition, and tested court submitted to the jury was the conduct his sand, and found that the supply was good, of the employés in charge of the car in at and that it was running freely. There is no tempting to take it down the hill when the suggestion in the evidence that anything was tracks were icy He instructed the jury that wrong with the car, or that the motorman if prudent employés would have considered did anything which he ought not to have done, it dangerous to take the car down at that or left anything undone which he should time, and would not have taken the hazard, have done, in the management of his car. then the employés in charge of the car were The sole fault which can be imputed to bim, guilty of negligence, and the plaintiff was under the evidence, is that he erred in his entitled to recover. But the difficulty in judgment when he started his car down the sustaining this submission of the question is grade. As the sequence showed, he did underthat there is no evidence that the employés estimate the difficulty caused by the preswere not prudent men, of long experience, ence of ice on the rails. The motorman of and yet they did as a matter of fact con. the car immediately ahead of him made clude that it was reasonably safe, under the the same mistake. But the exercise of judg. circumstances, to attempt to take the car ment-even though it be mistaken judgmentdown.

is not negligence. Under ordinary conditions It will be remembered that the plaintiff of the weather, and so far as his experience was not a passenger on the car, but was showed, under extraordinary conditions, he standing upon the public highway near the would have been safe in taking his car down terminus of the tracks. The car which ran that hill. He had done it many times before, into the telephone pole and broke it, thus in and his experience certainly fitted him to flicting injury upon the plaintiff, was the judge as to the conditions. He occupied the second of the two cars which, by reason of place of greatest danger on the front platthe ice on the rails, escaped from control at form, and regard for his own safety would the point in question. The motorman of naturally quicken bis instinct to anticipate the second car, which is the one which caus danger, if, in his judgment, there had been ed the injury to the plaintiff, had no knowl any real occasion for it. The testimony is edge of the fact that the car immediately pre clear that the accident was caused by condiceding had gotten beyond control, and he tions most unusual. When asked if he had started down the hill a few minutes after ever experienced during the two and a half wards. He had no dificulty until his car years that he had run over that road such a had proceeded a considerable distance, when night as that of the accident, the motorman be found it was beyond control. He used replied: "No, I told you I never experienced every effort to stop the car, but was unable it in 22 years before.” The testimony of the to do so. He tells the story thus in his own defendant's superintendent also was that the words: "I started off so slow that any six night was bad, raining, sleeting, icy; the years old boy could get on that car, from worst night he had ever seen in all his exthe top of the hill until I got within about perience in street railroading. 200 feet of the bridge that goes under the Negligence is not to be presumed upon the track. Then I began to notice that the happening of an occurrence which is the rebrakes would not hold it any more. It be sult of exceptional and extraordinary condigan sliding. Then I threw off the brake and tions. It must be presumed that in a hilly reversed the car, and pulled the sand, and country, such as that in the region of PittsI found there was too much ice on the rail burg, some risks must be taken in the operafor the wheel to take hold on the sand. It tion of street cars. It will not do to stop

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