text:
    McKim, Appellant, v. Philadelphia.

      Municipalities — Streets—Electric railway company- — Negligence.
    The legislature has authority to authorize an electric railway company to lay its tracks and operate its lines on the street of a municipality; and it may do so directly or by authorizing its agent, the municipality, to grant the authority, and it may empower the municipality to accompany the grant with such restrictions and limitations as may seem proper to protect the public in the use of the highways of the city. There is a duty, however, imposed upon the company, to exercise the power conferred by the municipality in such manner and way as not unnecessarily to obstruct the highway or interfere with the purpose for which it was primarily constructed.
    Legislative authority which will shelter an actual nuisance in a street must be express, or a clear and unquestionable implication from powers conferred, certain and unambiguous, and such as to show that the legislature must have Intended and contemplated the doing of the very act in question.
    If a city permits a street railway company to construct its railway on the streets of a city in such a way as to render the use of the streets by the public unsafe and dangerous, the city will be responsible for injuries resulting therefrom.
    Where a street railway company having authority from a city to use a street, plants a trolley pole in the middle of the street, and the conical base of the pole is about two and one-half feet in diameter at the street level, and about fifteen or eighteen inches in height and there is no artificial light on the pole nor in its vicinity, the city is responsible for the death of a man caused by the upsetting of a wagon on a dark night by the base of the pole. In such a case the fact that there was ample space between the curb and pole for teams to pass and repass, does not alter the case.

      Evidence — Opinion of witnesses.

    Where mere descriptive language is inadequate to convey to the jury the precise facts, or their bearing on the issue, a witness may be allowed to supplement his description by his opinion, to put the jury in position to determine the facts in issue; but when the circumstances are such that they can be fully and accurately described to the jury, and their bearing on the issue, estimated by persons without special knowledge or training, opinions of witnesses expert or other, are inadmissible.
    Argued Jan. 25, 1907.
    Appeal, No. 299, Jan. T., 1906, by plaintiff, from judgment of O. I'. No. 3, Phila. Co., Dec. T., 1903, No. 2,542, on verdict for defendant in case of Elizabeth McKim v. City of Philadelphia.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter and Stewart, J J.
    Reversed.
    Trespass to cover damages for death of plaintiff’s husband. Before McMichael, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-10) rulings on evidence; (11, 12) binding instructions for defendant.

      Joseph B. Fahy, for appellant.
    The use of these streets, under the peremptory mandate of the state legislature, could only be given by city council, to the traction companies, upon conditions that provided for the protection and convenience of public travel. It was imperatively provided that city council exact protection and convenience for public travel: Kinsey’s Opinions, 1895, pp. 117-120; Little v. Telegraph Co., 213 Pa. 229; Lamb v. Pike Township, 215 Pa. 516; Northern Cent. Ry. Co. v. Com., 90 Pa. 300; Com. v. Northern Cent. Ry. Co., 7 Pa. Superior Ct. 234; Potts v. Philadelphia, 195 Pa. 619; Bodge v. Phila., 167 Pa. 492; Powers v. Phila., 18 Pa. Superior Ct. 621.
    The safety of the traveler, by any means, is the question: Davis v. Corry City, 154 Pa. 598; Nudd v. Lansdowne Boro., 190 Pa. 89; Bloomsburg Steam, etc., Co. v. Gardner, 126 Pa. 80; Siegler v. Mellinger, 203 Pa. 256.
    The unguarded condition of a dangerous obstacle in the middle of the street is the question, not the width or narrowness of the road : Wall v. Pittsburg, 205 Pa. 48.
    To repair a street requires the abatement or removal of all obstructions, and where they exist the municipality must take the precaution to warn travelers on the highway of their presence: Hey v. Phila., 81 Pa. 44; Fritsch v. Allegheny, 91 Pa. 226; Born v. Allegheny, etc., Plank Road Co., 101 Pa. 334; Burrell Township v. Uncapher, 117 Pa. 353; Lamb v. Pike Township, 215 Pa. 516; Phila. v. Weller, 4 Brews. 24; Trego v. Honeybrook Boro., 160 Pa. 76; Frazier v. Butler Boro., 172 Pa. 407; Canfield v. Boro. of East Stroudsburg, 19 Pa. Superior Ct. 649.

      March 11, 1907:

      Thos. Raeburn White, assistant city solicitor, with him, John L. Kinsey, city solicitor, for appellee.
    The trolley pole with which the deceased collided was located by authority of law : Philadelphia v. Citizens’ Pass. Ry. Co., 151 Pa. 128; Reeves v. Philadelphia Traction Co., 152 Pa. 153.
    The pole being a lawful structure, this action cannot be maintained: Livingston v. Wolf, 136 Pa. 519; Cushing v. Boston, 128 Mass. 330; Stackhouse v. Vendig & Co., 166 Pa. 582; Com. v. Beaver Boro., 171 Pa. 542.
    The discretion of councils was properly exercised : Rafferty v. Traction Co., 147 Pa. 579; Halsey v. Ry. Co., 47 N. J. Eq. 380 (20 All. Repr. 859); Reeves v. Phila. Traction Co., 152 Pa. 153; Lockhart v. Railway Co., 139 Pa. 419.
    The city is not responsible for the absence of light: Cana van v. Oil City, 183 Pa. 611; Horner v. Philadelphia, 194 Pa. 542; Baily v. Philadelphia, 184 Pa. 594.
   Opinion by

Mr. Justice Mestrezat,

Eleventh street in the city of Philadelphia extends north and south, and crosses Federal street nearly at a right angle. At the place of this accident it is one hundred feet wide and seventy feet from curb to curb, and in the middle has a single-track electric railway line on which cars run north. The supply wires of the trolley system are supported by metal poles, placed alternately on the right and left, and near the track instead of at the curb. One of these poles stood near the west rail and about ten feet north of the north house-line of Federal street. It was of iron, about nine or ten inches in diameter and supported by a conical shaped base which was about two and one-half feet in diameter at the street level and fifteen or eighteen inches in height.

John McKirri, a milk dealer and the plaintiff’s husband, drove a one-horse milk wagon east on Federal street about 5:45 o’clock in the morning of January 24, 1903. He entered Eleventh street and, turning to go north, his wagon struck the base of the trolley pole, was upset, and he was thrown to the ground and received severe injuries from which he died a few hours later. The morning was very dark, and there was no artificial light on the pole ñor in the vicinity of the pole. There is an electric street light located at the southeast corner of Eleventh, and Federal streets, but it had not been lighted for at least a week prior to the accident. McKim’s wagon carried a light as required by city ordinance.

This action was brought by the widow of McKim to recover damages for his death which she alleges was caused by the negligent, and improper conduct of the city in not keeping its street, at the place of the accident, in a reasonably safe condition for persons who had occasion to use it. She avers in her statement that the city permitted the pole with its large projecting base to remain in the street for more than two years without providing “ means whereby such structural obstruction should be exposed or made conspicuous by proper light,” and during the night of January 23, 1903, “without fixing or placing any light or signal near such obstruction to denote its position.” The defense is that the trolley pole was located by authority of law, was a lawful structure, and was therefore not a nuisance, and that it was not an omission of duty on the part of the city to permit it to be constructed or remain on the location where it was placed without providing the necessary means to protect the public, using the street at night, against danger incident to a collision with it. On the trial below, the court directed a verdict for the defendant, and the plaintiff has taken this appeal.

It is conceded by the appellant that the trolley company was authorized by legislative and municipal action to locate and operate its railway on Eleventh street and to place the poles, carrying the wires which supply electricity, along and near its track in the center of Eleventh street. But the line was required to be constructed .and maintained subject to municipal regulations and approval, as the city ordinance of August 5, 1886, provides that “ the laying, construction and maintenance of all wires, .... poles, or cables shall be under the supervision of the chief of the electrical bureau and subject to his approval; and the same shall be laid under the rules and regulations of the board of highway supervisors.”

There is no doubt of the authority of the legislature to authorize an electric railway company to lay its tracks and operate its lines on the streets of a city or of any other municipality. And it may do so directly or by authorizing its agent, the municipality, to grant the authority, and it may empower the municipality to accompany the grant with such restrictions and limitations as may seem proper to protect the public in the use of the highways of the city. In 2 Abbot on Municipal Corporations, sec. 829, it is said: “ The legislature or one of its properly delegated agencies may, by its action, authorize the use of a street in such a manner as will cause obstruction, and which, without authority, would be regarded as illegal and a nuisance. The discretionary power is often given municipal bodies to authorize those encroachments or obstructions and where an abuse of discretion is not shown, their action will be sustained if coming within the general principles in respect to the creation and use of a highway.” What, therefore, would otherwise be a nuisance if placed in a street may be legalized and relieved of this fault by legislative or municipal action.

Conceding the right of the electric company to place its poles in the center of the street and that, by reason of municipal permission, they do not create a nuisance by being located there, yet there was a doty imposed upon the electric company to exercise tbe power conferred by the municipality in such manner and way as not unnecessarily to obstruct the highway or interfere with the purpose for which it was primarily constructed. Unless the intention is manifest, it will not be presumed that the legislature or its agent, the municipality, intended, when granting tbe right of the company to locate its poles in the middle of the street, to deprive the public of the right to use the street without danger and with safety to themselves. This is made more apparent by tbe fact that the city ordinance requires the poles to be located under tbe supervision and subject to the approval of the municipal officers. When an electric company invokes municipal action for its protection in occupying the streets of a city, it must appear that the company acted strictly in accordance with the authority conferred. In stating the English rule on the subject, Chief Justice Cockburn in Vaughan v. Taff Vale Ry. Co. 5 H. & N. 679 (685) says: “ When the legislature has sanctioned and authorized the use of a particular thing and it is used for the purpose for which it was authorized, and every precaution has been observed to prevent injury, the sanction of the legislature carries with it this consequence, that if damages result from the use of such thing independently of negligence, the party using it is not responsible.” That rule, of course, is limited in this country by the constitutional provision that prohibits the legislature from taking private property for public use without just compensation. But aside from this limitation, the rule as stated by the learned Chief Justice is certainly sound in principle, and clearly indicates that the beneficiary of the authority granted is required to exercise the legislative grant without negligence and with the necessary precaution to prevent injury to another. In a recent work on nuisances it is said that the rule may be stated to be that where one has the sanction of the state for what he does unless he commits a fault in the manner of doing it, he is completely justified, provided the legislature has the constitutional power to act: Joyce on Law of Nuisances, sec. 69. And in sec. 73 of the same work, citing authorities to support the text, it is said : “ So, though a corporation may be authorized by law to do a certain act, it must so use its powers as not to injure another. The fact that a' work is a lawful and beneficial one will not relieve the party constructing it from liability to another who is injured by its improper and unskillful construction. The grant of a franchise by the state to a person does not confer upon him the right to inflict damage upon another which by reasonable caution could have been prevented.” Mr. Smith in his “Modern Law of Municipal Corporations,” sec. 1097, after announcing the doctrine that the legislature may authorize a person or corporation to do an injurious act which would otherwise be a nuisance, proceeds to say : “ And if the power may be exercised in a way not to seriously injure the public, but is exercised in a way regardless of the public interest, there will be no legislative protection. The grant of power is in all cases to be exercised in such manner as to least interfere with public rights and interests, and by construction the grant or license is construed in favor of the public. Besides there is a high degree of care to be exercised in carrying out the grant of power in such cases.” The rule is well stated by Mitchell, J., in Tillage of Pine City v. Munch (Minn.), 6 L. R. A. 763, where he says : “If the legislature expressly authorizes an act which must inevitably result in public injury, what would otherwise be a nuisance may be said to be legalized; but if they authorized an erection which does not necessarily produce such a result, but such result flows from the manner of construction or operation, the legislative license is no defense. In order to justify a nuisance by legislative authority it must be the natural and probable result of the act authorized, so that it may fairly be said to be covered by the legislation conferring the power: Wood, Nuisances, 853-861.” In Babbage v. Powers (N. Y.), 14 L. R. A. 398, the defendant sought to excuse himself for maintaining a nuisance by having procured municipal permission for his act. It was held that he was not liable, in the absence of negligence; but Yann, J., delivering the opinion, says : “ The person receiving the license is held to impliedly agree to perform the act permitted with due care for the safety of the public, and is made liable for any violation of duty in this regard.” And in a more recent case in New York, Morton v. Mayor, etc., of New York, 140 N. Y. 207; s. c., 22 L. R. A. 241, it is held, as stated in the syllabus, that the legislative authority which will shelter an actual nuisance must be express, or a clear and unquestionable implication from powers conferred, certain and unambiguous, and such as to show that the legislature must have intended and contemplated the doing of the very act in question. “ Lawful acts may be performed in such manner, so carelessly, negligently, and with so little regard to the rights of others,” says Agnew, J., in Pittsburg, Fort Wayne and Chicago Railway Co. v. Gilleland, 56 Pa. 445, “ that he who, in performing them, injuries another, must be responsible for the damage.”

Applying these principles to the case in hand, we think the learned court below erred in withdrawing the case from the jury and directing a verdict for the defendant city. In this state, as all our cases on the subject declare, the highways are primarily for the passage of persons on foot and in vehicles. It is the duty of the municipal authorities having control of the highways to keep that fact in view, and while permitting them to be used for other purposes, it should not be done in a manner which would prevent their use by the public or would render them unsafe and dangerous. Seventy years ago the legislature of this state declared that the public highways should be constantly kept in repair and kept clear of all impediments to easy and convenient passing and traveling. This is the law of the commonwealth to-day, and includes the cities as well as the rural districts. The electric company was authorized by the ordinance to locate and operate its railway on Eleventh street, but there is nothing in the ordinance from which even an inference can be drawn that the use of Eleventh street by the company should exclude the public from it or that the company was authorized to construct or operate its railway in a manner which would render the street unnecessarily' dangerous. As it was the duty of the city to keep its streets clear of unnecessary impediments or obstructions and reasonably safe for public use, we cannot assume or infer that the councils intended to hand over Eleventh street to the electric company with permission to erect and maintain obstructions on it in total disregard of the rights of the public. In view of this duty of the city and of the unquestioned duty of the electric company to construct this line so as to maintain the street in a reasonably safe condition for use by the public, the question arises in this case, whether the electric company observed its duty in exercising the authority conferred by the city, or whether it negligently erected this pole or negligently maintained it so as to cause the accident which resulted in the death of the plaintiff’s decedent. These were questions for the jury. If the pole, either in its original construction, or in the manner of its maintenance, was dangerous to the public in the use of the street by day or night, municipal consent would afford the company no protection. The city, likewise, would be culpable, and liable to any person injured by reason of its neglect to protect him against the unlawful use of the street. ' In daylight, of course, the pole could be seen and avoided, but at night, and especially when it is very dark, as on this occasion, and could not be seen, a jury certainly would be justified in finding that it was a dangerous obstruction. If in the construction of its railway, it had been necessary to leave a hole in the street of equal, dimensions with the base of the pole, it could not reasonably be pretended that municipal consent to construct the railway on the street would authorize such action on the part of the company unless the public was, by some means, warned by day and night of the existence and location of the hole. The hole, however, would not be more dangerous than, the base of the pole which caused MeKim’s death, and both would manifestly be a dangerous Obstruction in the middle of a city street of a very dark night with no signals or lights to indicate their location. The rule which requires the streets of a city to be kept clear of dangerous impediments applies to the nighttime as well as to the daytime, and demands of the municipality action which will maintain the safety of the street during the whole of the twenty-four hours.

The fact that there was ample space between the pole and the curb for teams to pass and repass, as suggested by the appellee, does not alter the case. This pole stood nearly in the center of the street where a traveler would presume there was safety and where instinctively he would go of a dark night in order that he might have safe transit. This was a thickly populated community, and notwithstanding the width of the street, the city as well as the electric company should have expected the frequent use of every part of the street, both by night and day. Care under the circumstances, therefore, required the company, and on its default, the city, to give notice of the presence of the pole to those wdio might be using the street at night. It was a question for the company, subject to the approval of the city, to determine what was necessary for this purpose; the only obligation resting upon either of them was that they took reasonable precaution to accomplish the purpose intended. . This might have been done by a light on the pole itself, or by lights in the immediate vicinity of the pole, or in other ways, that could be suggested. The failure, however, to observe any precaution to protect people using the street during the night became a question of negligence which should have been submitted to the jury.

It is not necessary in this case to discuss or determine the duty of a city to light its streets. The broad question presented for decision here is whether the city under the circumstances disclosed by the testimony was guilty of negligence in permitting a dangerous obstruction on one of its streets which resulted in the death of the plaintiff’s decedent. That is a question which, under a proper charge by the court, was for the jury.

We are not convinced that the trial court erred in refusing to admit the opinions, of the plaintiff’s witnesses as to the dangerous condition of the street. There was no difficulty here in the witnesses describing the pole, its size, the manner of its structure, its location, and all of the conditions existing at the place of the accident. Whether, under all the circumstances, the pole either in its original construction or in its maintenance was dangerous to public travel on that street of a dark night was as easily determinable by the jury as by the witnesses. Where mere descriptive language is inadequate to convey to the jury the precise facts, or their bearing on the issue, a witness may be allowed to supplement his description by his opinion, to put the jury in position to determine the facts in issue; but when the circumstances are such that they can be fully and accurately described to the jury, and their bearing on the issue, estimated by persons without special knowledge or training, opinions of witnesses, expert or other, are inadmissible : Graham v. Pennsylvania Co., 139 Pa. 149.

The eleventh and twelfth assignments are sustained, the judgment is reversed, and a venire facias is awarded.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Perry, Appellant, v. Payne.

      Negligence — Master and servant — Owner and contractor — Elevator.
    Where an owner of a building permits two workmen employed by a contractor to use the top of the elevator as a staging for painting the upper part of the shaft of the elevator, and after this part of the work is done, the painters go to the bottom of the shaft, and while there at work the elevator boy employed by the owner, drives the elevator down the shaft, and one of the men is killed, the owner of the building is liable in damages for the death.

      Bond — Indemnity against damages — Contract—Contractor—Owner— Nonsuit.

    A contract of indemnity against damages arising from accidents to persons should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. The liability on such indemnity is so hazardous and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it.

      The contractors in a building contract gave to the owner of the building a bond conditioned that they “shall protect and keep harmless the owner of and from all loss, costs and damages, for nonfulfillment of same, or by reason of any liens, claims or demands for material for labor furnished for the construction of said work, or from damages arising from accidents to persons employed in the construction of, or passing near the said work, or for damages done to adjacent properties by reason of the construction of said work, or by depositing material in such a manner as to damage either the city or the individual.” Held, that the bond did not apply to accidents to persons resulting from the negligence of the owner or his servants while the owner was in possession of the building.
    Argued Feb. 4, 1907.
    Appeal, No. 192, Jan. T., 1906, by plaintiff, from order of C. P. No. 1, Pliiia. Co., March T., 1905, No. 576, refusing to take off nonsuit in case of Edward Perry v. George F. Payne and Charles G. Wetter, trading as George F. Payne & Company.
    Before Mitchell, O. J., Fell, Brown, Mestbezat and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond. Before Beitler, J.
    The facts are stated in the opinion of the Supremo Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Thomas Learning, for appellant.
    The painter’s presence on a stepladder in the elevator shaft was in pursuance of defendant's contract.
    The elevator was being operated in pursuance of an arrangement between employees of both parties for the execution of defendant’s contract.
    The liability is covered by the contract and bond of indemnity : Booth v. Dorsey, 208 Pa. 276; Woodbury v. Post, 158 Mass. 140 (33 N. E. Repr. 86).

      Edward W. Magill, with him Ruby R. Vale, for appellees.
    — Neither the building contract between the appellant and appellees, nor the condition of the bond given in accordance therewith, either by express language or by implication, contemplates the indemnification of the appellant against the consequences of his sole and exclusive negligence or that of his employees: Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 180; Mitchell v. Southern Ry. Co., 24 Ky. L. Repr. 2388 (74 S. W. Repr. 216); Atwood v. Reliance Transportation Co., 9 Watts, 87; Manhattan Ry. Co. v. Cornell, 54 Hun, 292 (7 N. Y. Supp. 557); Indianapolis, etc., R. R. v. Brownenburg, 32 Indiana, 199; Flynn v. Philadelphia, 199 Pa. 476; Swing v. Munson, 191 Pa. 582.
    March 11, 1907:
    The parties did not intend that the indemnitor should be liable where a third party recovers a judgment against the indemnitee as a result of the concurrent negligence of the indemnitor and the indemnitee : Springfield v. Boyle, 164 Mass. 591 (42 N. E. Repr. 333).
   Opinion by

Mr. Justice Mestrezat,

By a contract in writing dated October 21, 1902, George F. Payne & Co., the defendants, agreed to erect for Edward Perry, the plaintiff and owner of the premises, a building at the southeast corner of Sixteenth and Chestnut streets; and if the site was delivered to them by a certain date they agreed to deliver the finished building to the plaintiff on December 15, 1903. By the terms of the contract Payne & Company promised to execute and deliver to Perry a bond in the sum of $140,000, indemnifying him, inter alia, from all loss, cost or expense .... arising from accidents to mechanics or laborers employed in the construction of said work, or to persons passing where the work is being constructed: ” and in pursuance thereof the defendants gave' their bond to Perry conditioned, inter alia, that they shall protect and keep harmless the said Edward Perry of and from all loss, costs and damages, for non-fulfillment of same, or b}^ reason of any liens, claims or demands for material for labor furnished for the construction of said work, or from damages arising from accidents to persons employed in the construction of, or passing near the said work, or for damages done to adjacent properties by reason of the construction of said work, or by depositing material in such a manner as to damage either the city or the individual.”

Payne & Company entered upon their work, but failed to complete it within the specified time. The time limit was waived by mutual consent, and as certain parts of the building were completed and ready for occupancy they were delivered to Perry. In March, 1904, the entire building had not been finished, but Perry was in partial possession and had placed his employees in charge of the engine, machinery, elevators and every part of the building. A few of the employees of the contractors or of the subcontractors continued to work on the building until about June 1, 1904, when all their workmen were withdrawn from the building and although not formally delivered to him, Perry took possession of it. Owing to some defect in the plastering on the side of one of the elevator shafts, a piece of the plastering, about fifteen inches wide and twenty feet in height, had to be removed. The side of the shaft was then replastered and painted, but owing to further defects the architects refused to approve it, and it had to be removed and replastered again. This was done, and it necessitated the repainting of the shaft from the third floor to the bottom. Payne & Company were required under the contract to do the work. On June 17, 1904, on request of Payne & Company, Perry consented that their employees might use the elevator as a movable stage in painting the side of the shaft. Perry -was then and had been for some months in the exclusive possession of the elevator, and his employees were running it. On the morning of June 18,1904, two painters in the employ of a subcontractor of Payne & Company got on top of the elevator at the third floor for the purpose of painting the side of the shaft. As the painting within reach of the painters was completed, the boy operating the elevator would lower it, and as the work progressed, he continued to lower it until the bottom of the shaft was reached. There were then still about eight or ten feet of the shaft, the space occupied by the elevator, to be painted. The painters left the top of the elevator, and after the boy had hoisted it, they entered the shaft to complete the painting. Lynch, one of the painters, ascended a stepladder and while standing on it and engaged in painting, the boy lowered the elevator which struck Lynch and caused his death. Ilis widow recovered a judgment against Perry for the negligence of the latter’s employee in operating the elevator.

This is an action of assumpsit brought by Perry against Payne & Company on the bond of indemnity. The learned trial judge in the court below held that under the facts of the ease Payne & Company were not liable to Perry on the bond for the damages recovered against him by Lynch’s widow, and entered a nonsuit. The plaintiff has taken this appeal.

The learned counsel for the plaintiff concedes that at the time of the accident the elevator was being operated by a servant .of the plaintiff for whose negligent act, resulting in the death of Lynch, the plaintiff was responsible. This admission was fully justified by the evidence, as well as by the judgment obtained against Perry. He claims, however, that the court below made an unwarranted distinction in holding that the servant, operating the elevator, might have been regarded as being in the employment of the defendants while the painters were on the top of the elevator and using it as a staging for painting, but that after they left the top of the elevator and began painting under it at the bottom of the shaft, the servant was then in the employ of the plaintiff and the elevator was under the management and control of the plaintiff. We do not think the counsel’s position is well taken. From the facts, which are stated above, it is clear that whatever doubt may exist as to who was the employer of the boy — Perry or Payne & Company — while the painters were using the top of the elevator as a staging, or who, during that time, was in control of the elevator, there can be no question that after the painters had left the elevator and resumed their work at the bottom of the shaft, the boy was Perry’s servant and as such was in control of and operating the elevator. As we have seen, at the time Perry gave permission to Payne & Company to use the elevator, he was in the exclusive control and management of it, and he consented to its use by them for staging purposes only, and when it was no longer needed for that purpose, Perry, through his servant, resumed the use of it for his own purpose. The painters did not need it while painting at the bottom of the shaft, and it had to be hoisted above the unpainted portion of the side of the shaft before they could do that part of the \york. Having served the purpose for which the contractors had procured it from Perry, the owner of the building then continued to use the elevator in his own business when, by a negligent act of his servant in operating it, it caused the injury resulting in Lynch’s death.

The principal and controlling question in the case depends upon the interpretation of the bond on which the action was brought. That part of the condition of the bond with which we are particularly concerned provides that the contractors “ shall protect and keep harmless the said Edward Perry .... from damages arising from accidents to persons employed in the construction of, or passing near, the said work.” The plaintiff contends that this bond indemnifies him against all damages arising from injuries to any person employed about the work, whether the injuries were caused by the negligence of the contractors or their employees, or by the negligence of himself or his employees. He contends that the language can bear no other interpretation, that the liability against which he is indemnified does not depend upon who caused the injury, but must be determined by the class of persons to which the victim belongs, and that the indemnification covers all damages which he is required to pay arising from injuries to any person who is engaged in the construction of the building.

We cannot assent to this construction of the bond. It ignores the well-established rules applicable to the construction of such instruments, and results, as we think, in imposing a liability on the contractors which was not contemplated by the parties. In construing the instrument, it is our duty to ascertain the intention of the parties, and in doing so we are not confined to the language used, but may consider the circumstances surrounding the parties and their object in making the instrument. The nature of the duty of the obligor and the character of the obligee will be regarded as explanatory of the intent of the parties: Strawbridge v. Railroad Co., 14 Md. 860. Here the obligors were the contractors for the erection of the building, and by their contract they agreed “ to furnish all the materials for, and to build, construct and finish complete in every respect, ready for use, a building,” within a stipulated time. This necessitated their being in possession of the premises during the time required for the construction of the building, and the plaintiff desired to relieve himself from any liability or from any litigation arising out of a supposed liability for any act done during the progress or the continuance of the work by the contractors. Hence the indemnification clause of the contract and the bond. But against whose negligent or unlawful act or acts was Perry to be indemnified % We. think an analysis of the condition of the bond will disclose. He was to be protected from loss and damages for nonfulfillment of. the contract. Certainly that obligation rested upon Payne & Company. He was to-be protected against any liens, claims or demands for material for labor furnished for the construction of the work. That protection, manifestly, was to be afforded by Payne & Company. He was to be indemnified against damage done to adjacent properties by reason of the construction of the work. As Payne & Company were to erect the budding, we think there can be no doubt that the damage there contemplated was such as would be done by Payne & Company, or their employees, and not by Perry or his employees. He was also to be indemnified against depositing material in such a manner as to damage either the city or the individual. Again recalling Payne & Company’s relation to the building, that they were to furnish the material and erect the structure, this evidently only contemplated a liability if the material should be deposited by the contractors, and did not include material which might be deposited by Perry. In neither of the last two instances does the bond designate the party against whose negligent act Perry should be indemnified, but no reasonable interpretation of it would impose liability in either case for the acts of Perry or his employees ; because manifestly the necessity for doing so could not have been anticipated by the parties, and hence it was not intended that the bond should cover such acts by Perry. He was also to be indemnified against damages arising from accidents to persons employed in the construction of, or passing near, the said work.” Against whose acts resulting in damages to such persons did the parties intend that Perry should be protected ? Manifestly against the acts of the same parties against whom the bond protected Perry for damages arising from the deposit of materials, or the damages done to adjacent properties by reason of the construction of the work. In those cases, the negligent or unlawful acts against which Perry provided were evidently those of the contractors, although not so expressly stipulated, and we think it equally clear that it was the intention of both parties, when the bond in question was given, that the accidents against which the bond indemnified should he those that were caused by the negligence of the contractors or their employees who were engaged in the construction of the building, and not such as might arise from the unanticipated negligence of Perry or his employees.

It is contrary to experience and against reason that the contractors should agree to indemnify Perry against the negligence of himself or his employees. It would make them insurers, and impose a liability upon the contractors, the extent of which would be uncertain and indefinite, and entirely in the hands of Perry. The results of such a liability might become most disastrous. While the consideration named in the contract for the construction of the building and indemnifying the owner was large, yet it was wholly inadequate to justify the contractors in assuming liability for his negligence in view of the responsibility in constructing the building. The profits to be realized on the contract were entirely too small to warrant the contractors in agreeing to assume a liability of such great proportions and of such unlimited extent. A single act of negligence on the part of the owner or his employees, over whom the contractors would have no restraint or control whatever, might create a liability which a lifetime of successful business could not repay. An interpretation of the bond which might give rise to such results could hardly be regarded as reasonable or as giving effect to the intention of the parties.

The question presented here has not arisen or been determined in any of the reported decisions of this court. In other jurisdictions, however, the inclination is decidedly against construing a contract of this character as indemnifying the indemnitee against his own negligence; and it is there held that a contract will not be so construed unless express language requires it. In Mynard, etc., v. Syracuse, etc., R. R. Co., 71 N. Y. 180, it is held that “ every presumption is against an intention to contract for immunity for not exercising ordinary diligence in the transaction of any business, and hence the general rule is that contracts will not be so construed unless expressed in unequivocal terms.” In Mitchell v. Southern Ry. Co., 24 Ky. L. Repr. 2388, Mr. Justice Paynter, speaking for the court, says: “ If a doubt existed as to its (clause of indemnity) meaning, the court would resolve that doubt against the contention that the contract was intended to indemnify appellee against its own negligence. Every presumption is against such intention. ... In Perkins v. New York Central R. R. Co., 24 N. Y. 196, the court said: 'A party who claims exemption from liability for the negligence of his servants or agents must undoubtedly base his claim upon the express words of his contract. It will not be presumed in his favor.’ ”

In Manhattan Ry. Co. v. Cornell, 54 Hun, 292, affirmed by the court of appeals of New York, 130 N. Y. 637, a contractor, employed to construct an extension to the station platform of a railway, indemnified the railway company against “ all loss, cost or damage .... from any damages arising from injuries sustained by mechanics, laborers or other persons, by reason of accident or otherwise.” During the progress of the work a laborer in the employ of the contractor was killed by an engine of the railway company for which the widow of the laborer recovered damages against the company. Suit was then brought by the company against the contractor on his indemnity contract, but it was held that the contract did not indemnify the company against the negligence of its employees. In the opinion of the court it is said: “ For, while the language of this part of the contract is very general, it cannot reasonably be so construed as to impose upon the contractors the obligation to protect the plaintiff against the carelessness or negligence of persons in its own employment. "What the party designed and intended by this part of the agreement was to indemnify the plaintiff against liability for any damages or injuries that might be sustained by persons in the employment of the contractors in the progress and execution of their work. . . . There was no relation whatever existing between them (employees of the railway company) and the contractors, and it is not reasonable to suppose that in the use of this language, either the plaintiff or the contractors intended or understood the latter to be obligated to indemnify the plaintiff against the carelessness or misconduct of its own servants or employees.”

In Johnson v. Richmond and Danville R. R. Co., 86 Va. 975, the contract provided that a railroad company should not be responsible for any injuries to or death of any member of a firm which had contracted to construct some work for the company, and that in the event of any suit being brought against the company or any judgment obtained against it, the contractors should resist the suit and pay such judgment. One of the firm was killed by a train of the railroad company, and in an action for his death the company set.up the contract as a defense. The trial court sustained its position, but the court of appeals reversed, Mr. Justice Lewis delivering the opinion saying: “ It was very properly conceded in the argument that the instruction given by the circuit court is erroneous. The theory of that instruction is that the fifth clause of the written agreement, although it in effect stipulates for exemption from liability even for the consequence of the company’s own negligence, is notwithstanding valid, and consequently precludes a recovery by the plaintiff, whether the company was negligent or not. It would be strange, indeed, if such a doctrine could be maintained. To uphold the stipulation in question would be to hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct, which can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void.”

The only case cited by the learned counsel of the plaintiff in support of his position and the one which he contends rules the present case in favor of his client is Woodbury v. Post, 158 Mass. 140. We think, however, that the reasoning of the court there is against the plaintiff’s construction of the contract in our case. There is a clear distinction between the contracts in the two cases, and the Woodbury case was ruled in favor of the indemnitee on the ground that the terms of the contract specifically provided indemnity against his own negligence. The letters passing between the parties constituted the contract. The indemnitee’s letter contained the following proposition which was accepted by the indemnitor: “ If any injury shall be occasioned to any person or property while you are using such engines or derricks, or as a result of such use, you are to indemnify us against any damage or expense by reason of the same, notwithstanding the condition of the engine, derrick, or appliances, or the negligence of our employees upon the derrick or engine, may have caused or contributed to the injury.” Two of the indemnitee’s employees wore injured by the defective condition of one of the derricks while being used by the indemnitor, and received compensation from the indemnitee for their injuries. In a suit by the indemnitee to recover this compensation from the indemnitor, it was held that the plaintiff could recover the amount he had paid the injured employees, although their injuries were the result of his own negligence. The right to recover was put on the ground that the contract expressly stipulated against the indemnitee’s own negligence, the court holding that the language used made it clear that such liability was imposed by the contract. In the opinion it is said (p. 144): “ The clause ‘ notwithstanding the condition of the engine, derrick, or appliances, or the negligence of our (plaintiffs’) employees upon the derrick or engine, may have caused or contributed to the injury,’ does not limit the indemnity to damages and expenses caused by the condition of the engine, derrick, and appliances, or the negligence of those employed upon the derrick or engine. Its purpose and effect were to make it clear that those circumstances, which if no such clause had been inserted, might. have been claimed to defeat the right to indemnity, were not to impair the plaintiffs’ right. The clause negatives possible exceptions which might in effect be read into the contract by the application of principles of law, unless the parties made it certain that indemnity from the result of all injuries, however occurring, was expressly stipulated.” It is, therefore, apparent from the opinion of the court that the liability of the indemnitor was put upon the ground that the contract expressly stipulated against the indemnitee’s own negligence, and that “the clause negatives possible exceptions ” to such liability.

We think it clear, on reason and authority, that a contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. The liability on such indemnity is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assmne the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it. The manifest purpose, in such cases, to indemnify against the injury which, under the circumstances, could reasonably be apprehended only from the action of the indemnitor or his servant, is a weighty consideration in construing indemnity contracts. The circumstances surrounding the parties, the one, the owner for whom the building is to be erected, and the other, the contractor who is to construct the building and hence from whose acts injury to persons and property may be anticipated, would seem to make the conclusion irresistible, that unless expressly stipulated in the contract the owner is not to be indemnified against his own negligence. In the case in hand the parties have not expressly stipulated against injury occasioned by the indemnitee’s own negligence, and ive are satisfied, from the terms of the instrument read in the light of the circumstances surrounding the parties as well as the manifest purpose inducing the bond, that they did not intend to protect the indemnitee against his own or his servant’s negligence.

The assignment of error is overruled, and the judgment is affirmed.


author: Mr. Justice Fell,

text:
    Perkiomen Railroad Company, Appellant, v. Bromer.

      Evidence — Parol evidence — Written agreement — Deed—Railroad—Farm, crossing.

    While «11 negotiations and promises and oral agreements are merged in and extinguished by the -written instrument which is the final result of the bargainings of parties, yet an oral promise by one of the parties made at the time and used to procure the execution of the writing may be given in evidence, although its effect is to change the writing.
    Parol evidence is admissible to show that the grantor in a deed to a railroad company was induced to execute the deed by a contemporaneous parol promise made by the president of the railroad company, that the company would build a crossing over the railroad to connect the two portions of the owner's land.
    Such a parol agreement will be sustained where the testimony of the grantor on the subject is corroborated by a witness who was present when the writing was executed, and by proof that the grantor had remained in possession of the land thirty-six years under an arrangement by which his right to insist on a crossing, and the duty of the company to construct one, wore suspended.

      Argued Feb. 4, 1907.
    Appeal, No. 202, Jan. T., 1906, by plaintiff, from judgment of O. P. Montgomery Co., March T., 1905, No. 11, on verdict for defendant in case of Perkiomen Railroad Company v. Albert Bromer.
    Before Mitchell, C. J., Pell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Ejectment for land in Schwenksville. Before "Weand, J.
    At the trial, when the plaintiff was on the stand, the following offer was made:
    We propose to prove that anterior to the execution of the release offered in evidence by the plaintiff an agreement was entered into between him and the Perkiomen railroad, represented by Anthony IT. Seipt, its president, by which, in consideration of his executing that release they would pay him $1,500 and give him an overhead crossing to his lands on the eastward of the proposed railroad; that when the release was drawn up and brought to him for execution he objected to it because of the omission of any stipulation as to the crossing; that Mr. Seipt then informed him that the insertion of such a stipulation in that release was not necessary because the railroad company was bound to give him a crossing anyhow, and that it was not customary to insert such a stipulation in a release ; that thereupon, and upon the faith of Mr. Seipt’s state.ment, he executed that release; that thereafter, about four months, a subsequent agreement was entered into by him with the said railroad, in the person of its president, Anthony H. Seipt, by which it was stipulated and agreed, that if he would not insist upon the construction of that overhead crossing the railroad company would suffer him to use and occupy the land then in his possession and included in that release until the railroad company did build him an overhead crossing, and that he would not have signed said release except upon, the faith of •those representations by Mr. Seipt.
    Mr. Evans : Objected to.
    The Court: Are you basing this offer on the fact that Mr. Seipt was the president, or was the agent, or what ?
    Mr. Freedley : Basing it upon the fact that he was the person who represented the railroad company in these negotiations, being by office president of the railroad company and its authorized agent.

      The Court: I want to know whether you are basing it upon the fact that he was the agent who negotiated this transaction, or whether he was the president, or whether you are taking both %

    Mr. Freedley: We are taking both of them; taking the position that he was the only party that we knew in this transaction.
    The Court: The objection is, that the offer as made ought to be modified. Mr. Freedley in bis offer of the two transactions states that a contract was made; I suppose you mean a parol contract ?
    Mr. Freedley: Yes, sir.
    Mr. Evans: We object to this offer because it is an attempt on the part of the defendant to change and modify a written instrument; that all that is proposed has been swallowed in the deed that afterwards folloAved.
    The Court: The objection is overruled. Plaintiff excepts. Bill sealed. [10]
    Mr. Strassburger: “ Q. On the day that the release, was executed, Avhat took place, January 22, 1869 — Avhat took place then ? A. On that day Mr. Seipt, the president and agent of the Perkiomen Railroad Company, in company with ’Squire William Fox, came to my place of business and said, now we are ready to close up that transaction, and he said here is your release that you will have to sign. I read that release carefully, and I said, Mr. Seipt, this release don’t say anything about that crossing which you agreed that I should have; you don’t mention it at all. Mr. Seipt said the privilege of a crossing is not a matter of damages ; he said the law compels us to give any man a crossing whose lands were cut in two parts; that seemed plausible to me; I believed it at the time, and upon that explanation I signed the release.
    “ Now, about four months after that, some time in May, I think, I met Mr. Seipt, the president and agent of the Perkiomen Railroad Company. I met him on the cars. I said, Mr. Seipt — ”
    Mr. Evans : We object to this witness testifying to any matter that occurred betAveen him and Mr. Seipt relating to the construction of a crossing or to the use of this land unless •either it was in writing by the company or the authority that Mr. Seipt was acting under is shown.
    The Court: The objection is overruled for the present. Plaintiff excepts. Bill sealed. [11]
    Mr. Strassburger: “ Q. Well? A. I asked Mr. Seipt how about my crossing; he told me he would have it ready for me in time to get in my crops from the lowland; why, he said, Mr. Bromer, you know we are trying with all our might to have the railroad extended to Schwenksville and run the first train on the fourth of July morning; we are short in labor, and it is not hardly possible to get that crossing ready for you. lie said, Mr. Bromer, have you no way to get out; could you find a way to get down there to get your crops ? I said, yes, I can go over the bridge and the mill property and the Perkiomen, and get it off that way, but I said I could hardly haul a heavy load and it is very unhandy. Well, he said, Mr. Bromer, I wish you would do that, and in the next season you shall have your crossing ready in time for harvest. Well, I considered about this a little, and with the barn and yard as it was then, it was certainly of great importance to me, and especially the barn, and I said, Mr. Seipt, how would this do ; I -would be willing; I would be willing to do without a crossing as long as you let me use this ground and the barn ;. if I can have the use of that, I will go around and bring over my crops in that way, but, I said, whenever you make me a road, and you want to occupy this ground, I have no longer to build a barn except for the lowland which I have to fill up ; then I want my crossing and must have it. He said that was all right; he seemed to be very much pleased ; he seemed to be more pleased than I was; he extended his hand and said, Mr. Bromer, that is a bargain, and this was nearly thirty-six years ago, and I have kept- my side of the bargain forthwith.”
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (10, 11) rulings on evidence, quoting the bill of exceptions.

      Montgomery Evans, with him John M. Detima, for appellant.
    The declarations of the agent that a provision for a farm crossing need not be contained in the deed was not suffioient to reform the deed in the absence of evidence of authority of the agent other than that shown by the paper itself: Espy v. Anderson, 14 Pa. 308; Hale v. Henrie, 2 Watts, 143; Soles v. Hickman, 20 Pa. 180; Caldwell v. Fulton, 31 Pa. 475; Cunningham v. Neeld, 198 Pa. 41; Jones v. Yoder Land Co., 16 Pa. C. C. Rep. 652; Rice v. Lewis, 4 Atl. Repr. 810; Hollenback’s App., 121 Pa. 322; Fink v. Fanners’ Bank, 178 Pa. 154; McAninch v. Laugblin, 13 Pa. 871; Rankin v. Mortimere, 7 Watts, 372; Clapp v. Hoffman, 159 Pa. 531.
    March 11, 1907:
    Even though the deed be considered performed and a covenant to supply a farm crossing written into it, the grantor cannot retain possession of the land until performance of the covenant, but his remedy is an action for damages for breach of the covenant: Lilley v. Ry. Co., 213 Pa. 247; Pusey v. Wright, 81 Pa. 387; Kemble v. Ry. Co., 140 Pa. 14; Brown v. R. R. Co., 29 Pa. Superior Ct. 131; Jones v. Railroad Co., 11 Pa. Superior Ct. 202; Kenny v. Railway Co., 208 Pa. 30.
    The president of a corporation grantee in a deed cannot relinquish possession of the land to the grantor until performance of a covenant to supply an easement over land conveyed, unless express authority in writing be given him for such action: Angelí & Ames on Corp., sec. 239; Soper v. R. R. Co., 19 Barb. 310; Penna. R. R. Co.’s App., 80 Pa. 265; Smith v. Iron & Steel Co., 208 Pa. 462; Murray v. Lumber Co., 143 Mass. 250 (9 N. E. Repr. 634); Clarkson v. Keystone Oil Cloth Co., 23 Pa. C. C. Rep. 189; Erb v. Brown, 69 Pa. 216; Railway Co. v. Peet, 152 Pa. 488; Pierce v. Barney, 209 Pa. 132; Bangor, etc., Railway Company v. Slate Company, 203 Pa. 6; Bank of Allentown v. Hoch, 89 Pa. 324; Twelfth St. Market Company v. Jackson, 102 Pa. 269.

      Henry Freedley, with him J. A. Strassburger, for appellee.
   Opinion by

Mr. Justice Fell,

This was an action of ejectment to recover possession of a part of the plaintiff’s right of way obtained by grant from the defendant in 1869, whic&t has since remained in his possession. The road divided a tract of five acres of land owned by the defendant in a country town so as to prevent convenient access between the parts, and the opening of the right of way to its full width of eighty feet would require the removal of a barn, which for want of space could not be rebuilt on'the part on which the house is located. The plaintiff had no occasion to occupy the whole of the right of way, and the defendant remained in undisputed possession of it for thirty-six years, until this action was brought.

At the trial there was no dispute as to the grant or the boundaries. The defense was that, by the original agreement made with the president of the company, who was its agent in procuring rights of way, the defendant, in addition to the money consideration to be paid, was to have a crossing to connect the pieces of his land, which would be separated by the construction of the road. That when the deed was presented to him for execution, he objected to it because no mention was made in it of the crossing, and that he was assured by the president that it was unnecessary to mention it in the agreement, as the company would be required by law, irrespective of the agreement, to construct the crossing, and that on faith of this assurance he acknowledged and delivered the deed. That subsequently he demanded the crossing and was told by the president that it would be built soon and was requested not to insist on the crossing while he could have the use of the barn, and that to this he agreed. The assignments of error relate to the admission of this testimony, and to the effect given it by the charge.

While all negotiations and promises and oral agreements are merged in and extinguished by the written instrument which is the final result of the bargainings of parties, yet an oral promise by one of the parties made at the time and used to procure the execution of the writing may be given in evidence, although its effect is to change the writing: Powelton Coal Co. v. McShain, 75 Pa. 238; Thomas & Sons v. Loose et al., 114 Pa. 35; Ferguson v. Rafferty, 128 Pa. 337. The instruction as to the standard of evidence required that it must be clear, precise and indubitable in the sense that it carries conviction to the mind and by witnesses who know and are credible, was full and accurate. The plaintiff was corroborated as to the making of the contemporaneous oral agreement, and as to its terms by a witness who was present when the writing was executed and by proof that the defendant has remained in possession of the land thirty-six years under an arrangement by which his right,to insist on a crossing and the duty of the plaintiff to construct one were suspended. Under the testimony the establishment of a crossing was distinctly a part of the consideration, and until established there was no right of possession.

The judgment is affirmed.


text:
    Taylor, Appellant, v. Penn Steel Castings & Machine Company.

      Negligence — Master and servant — Patent danger — Evidence—Contributory negligence.

    A workman who stumbles over a bolt projecting from a machine at which he is at work, and falls down a nearby elevator shaft cannot recover damages from his employer for his injuries, where it appears that the bolt projected from the machine for a useful purpose, that the workman long knew of its position which was patent to everyone, that the elevator shaft was provided with a guard which the workman refrained from using because of its inconvenience, and that although he had spoken two months before to the foreman about the bolt, no promise had been made to him in reference to it.
    Argued Feb. 11, 1907.
    Appeal, No. 122, Jan. T., 1906, by plaintiff, from judgment of C. P. Del. Co., Sept- T., 1904, No. 174, for defendant non obstante veredicto in case of Joshua C. Taylor, Administrator of the Estate of Edward L. Moudy, v. Penn Steel Castings & Machine Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict for plaintiff for $3,100. The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      March 11, 1907:

      O. B. Dickinson, with him J. C. Taylor, for appellant.
    The case was for the jury : Johnson v. Bruner, 61 Pa. 58; Bennett v. Glass Co., 158 Pa. 120; Hickey v. Solid Steel Castings Co., 212 Pa. 255; McCarthy v. Shoneman Bros., 198 Pa. 568; Patterson v. R. R. Co., 76 Pa. 389; Brownfield v. Hughes, 128 Pa. 194; Reese v. Clark, 198 Pa. 312; Williams v. Clark, 204 Pa. 416; Garrity v. Casting Co., 17 Pa. Superior Ct. 623; Lillie v. American Car, etc., Co., 209 Pa. 101; Schiglizzo v. Dunn, 211 Pa. 253; Maines v. Harbison-Walker Co., 213 Pa. 145; Hughes v. Fayette Mfg. Co., 214 Pa. 282.

      W. B. Broomall, with him George M. Booth, for appellee.
    The appellee submits that the lavv applicable to the facts in this case is to be found in the following citations : Talbot v. Sims, 213 Pa. 1; Brownfield v. Hughes, 128 Pa. 194; Kupp v. Rummel, 199 Pa. 90; McCarthy v. Shoneman Bros., 198 Pa. 568; Maines v. Harbison-Walker Co., 213 Pa. 145.
   Opinion by

Mr. Justice Fell,

The plaintiff was employed in the defendant’s mill to assist in making iron castings, and had been at this work in the same place for two years before his injury. His duty was to load cars with pig iron on the ground floor, to move the cars to an elevator, to raise them to the second floor, to move them from the elevator to a scale where they were weighed, and then to take them to furnaces. If a car contained too much iron he removed enough to reduce the load to the desired weight and placed it on a pile nearby ; if it contained too little, he made up the deficiency from this pile. The platform of the scale was five feet by six. A triangular piece, the hypothenuse of which was eighteen inches, had been removed from each corner, and at the middle of the line of the hypothenuse and two and a half inches from the opening at each corner, iron bolts had been screwed through the floor and projected from one-half to three-quarters of an inch. These bolts had been placed by the maker of the scale to support the beams, below the floor on which the scale rested, in such a way that its platform would be even with the mill floor. On the night of the accident the plaintiff, while carrying a piece of iron from the car to the pile, struck his foot against one of the projecting bolts, and fell down the elevator shaft.

Judgment non obstante veredicto was entered for the defendant on the ground that there was no defect in the scale, or in the elevator; that the projecting bolt was a part of the construction of the scale; that it was in plain sight, and that it was known to the plaintiff. It may not have been necessary that the bolts should extend above the floor, but they were so placed by the builder in constructing the scale for a purpose deemed to be useful. The master mechanic called by the plaintiff testified that these bolts supported the whole weight of the scale, and the car with its load ; that the iron plates of the floor were strengthened by riveting iron pieces on the under sides of them ; that holes were drilled through the plates and the pieces, and the thread of the screws extended through both, and the bolts and their load were supported by them; that the bolts were used not only to sustain the scale, but to level it by screwing them up or down. The extension of the bolts through the floor added to the strength of the support and facilitated the adjustment of the scale. It was a part of the construction, useful, if not necessary. Any danger arising from it was obvious and fully known to the plaintiff.

The elevator was constructed so that it could be inclosed by the use of iron posts at the corners and chains extending from one post to another. The posts were in place except one, which was lying on the floor by its hole, and the chains were at hand. This means of safety had been persistently disregarded by the plaintiff because of its inconvenience, and all danger from the want of guards was of the plaintiff’s creation.

Some two months before the accident the plaintiff called the attention of the foreman of the room to the bolt which caused his fall, who said he would speak to the master mechanic about it. There was no promise to make any change, nor does it appear that there was any defect that it was the duty of an employer to remedy.

The judgment is affirmed.


text:
    Chester & Darby Telford Road Company v. Chester, Darby & Philadelphia Railway Company, Appellants.
    March 11, 1907:

      Street railways — Turnpike road company — Contract—Mandatory injunction.

    A court of equity will by mandatory injunction enforce specific performance of a contract between a street railway company and a turnpike road company, so as to compel the former to lay its tracks at the height and in the location specified in the contract, and to construct a solid and smooth surface between the track and the improved portion of the road as stipulated in the contract.
    Where such a contract provides that the external portion of the track shall be placed twenty feet from and parallel with the center line of the Telford portion of the road, except in running over or under bridges, or where it must of necessity be less than twenty feet, and it appears that the tracks were laid at one point in the center of the road, and it also appears that in many places the outside rail was laid with the knowledge and acquiescence of the turnpike company eighteen feet from the center line, the court will only enjoin the removal of the tracks only at the point where they were placed in the center of the road.
    Argued Feb. 11, 1907.
    Appeal, No. 231, Jan. T., 1906, by defendant, from decree of C. P. Del. Co., Dec. T., 1899, No. 167, on bill in equity in case of Chester & Darby Telford Road Company v. Chester, Darby & Philadelphia Railway Company, Union Railway Company and Chester Traction Company.
    .Before Mitchell, C. J., Fell, Mestbezat, Potter and Stewart, JJ.
    Decree modified and affirmed.
    Bill in equity for an injunction. Before Johnson, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court.

      W. B. Broomdll, for appellants.

      Frank JS. Savidge, with him O. B. Dickinson, for appellee.
   Opinion by

Mr. Justice Fell,

The bill in this case was to enjoin the defendant and itslessees from maintaining the tracks of its electric railway on the plaintiff’s roadway in violation of tho agreement under which permission to lay them had been obtained. The Chester & Darby Telford Road Company, prior to 1893, constructed a telford road on the main highway between Chester and Darby. The general width of the highway was sixty feet, but in places it was only fifty feet wide. The improved part thereof was in the center and was eighteen feet wide. By agreement between the parties in April, 1893, the railway company was granted permission to lay tracks upon the road subject to the restrictions : (1) that the external portion of the track, which should be single with necessary turnouts, should bo placed twenty feet from and parallel with the center line of the tel-ford portion of the road “ except in running over or under bridges or where it must of necessity be less than twenty feet, subject to the approval of the Telford Road Company; and the rail adjoining the center line thereof shall be placed at a point which is in alignment with and in conformity to what would bo a proper continuation of the existing camber of the telford road;” (2) “The surface between the rails and that part of the roadway lying between the present telford portion and the track as placed shall be solid, presenting an even and smooth surface, and shall be constructed and maintained with stone or such other material as may be approved by the directors of the Telford Road Company.”

The complaint of the bill is that the road was constructed in disregard of the agreement, in that the track was placed too high, the part of the roadway between the tracks and the telford portion of tho road has not been made solid and smooth, by reason whereof the natural drainage and the system of drainage adopted by the telford company have been interfered with, and at the foot of Darby Plill in the borough of Darby the track was laid in the middle of the road instead of on the side as provided by the agreement. The court found that the complaint was established by the testimony, and entered a decree prohibiting the maintenance of the track at any part of the road higher than it should be to align with and properly continue the camber of the road; requiring the removal of the track to the side of the road in the borough of Darby and elsewhere, and requiring the making of the surface between the rails and that part of the roadway between the track and the telford portion of the road solid, with an even and smooth surface; and generally to carry out all the covenants and conditions of the agreement.

We have no disposition to interfere with this decree except to modify it in one particular. While the bill was not filed for six years after the track had been laid, there was never an acquiescence by the telford company to the elevation of the track and the failure to make a hard, smooth surface between the track and the improved part of the roadway. These were the subjects of constant complaint' on the one hand and of unperformed promises on the other. The attitude of the tel-ford company throughout has been tolerant and just. It has not insisted upon a literal, but only upon a reasonable and substantial compliance with the agreement. It has not insisted that the track should be made to conform to the minor undulations of its road, but that it should be so placed as not to interfere with proper drainage, essential to the preservation of its road.

The respect in which the decree seems to be too broad is in requiring the removal of the track not only at the foot of Darby Hill, but “ elsewhere ” upon the side of the turnpike in accordance with the terms of the agreement.” If by this it is meant that on the whole length of the road the outside rail is to be placed a distance of twenty feet from the center line of the turnpike, it imposes a burden on the railway company that is unreasonable and inequitable. In many places the outside rail was laid eighteen feet from the center line. This was done with the knowledge and apparent acquiescence of the president of the telford company, who for it supervised the construction, and of other officers of the company. As far as we know it was not made the subject of complaint at any time and it is not mentioned in the body of the bill, although referred to in one of the prayers for relief. ■ The agreement allowed some latitude in this regard by the exception as to distance “ in running over or under bridges or where of necessity it has to be less than twenty feet.” This slight variation in distance having been made without objection and acquiesced in, if not authoritatively approved, a strict compliance with the letter of the agreement, which would subject the lessees of the railway to great loss and inconvenience without corresponding advantages to anyone, should not now be exacted.

The words “and elsewhere” are struck from the second paragraph of the decree, and in all other respects the decree is affirmed at the cost of the appellant.


text:
    Chester, Darby & Philadelphia Railway Company, Appellant, v. Darby Borough.

      Street railways — Boroughs—Municipal consent — Use of street — Conditions — Removal of tracks — Equity.
    Where a contract between a borough and a street railway company provides that the company shall not take up or remove its tracks without the consent of the borough, and after the contract is in operation, the county reconstructs a bridge on which the tracks are laid in such a way that the tracks on the bridge do not align with those on the land, the street railway company has no right, secretly and at night, to take up its tracks to readjust them, without having made any attempt to secure the consent of the borough to such action. If the borough authorities interfere to prevent the taking up, of the tracks before the company obtains municipal consent, a court of equity will not at the instance of the company restrain them from so doing, but the borough cannot arbitrarily withhold consent or cannot burden its consent by conditions that impose further pecuniary obligations upon the company.
    Argued Feb. 12, 1907.
    Appeal, No. 389, Jan. T., 1906, by plaintiffs, from decree of C. P. Del. Co., June T., 1905, No. 152, dismissing bill in equity in case of The Chester, .Darby & Philadelphia Railway Company, Union Railway Company and Tbe Chester Traction Company v. Borough of Darby, otherwise known as the Burgess and Town Council of Darby Borough.
    Before Mitchell, C. J., Fell, Mestkezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in tbe opinion of tbe Supremo Court.

      Error assigned was decree dismissing the bill.

      W. B. Broomull, with him J. If. Hannum, for appellants.
    — It is fair to assume that in the exigency of tbe continuity of the tracks being interfered with by the authorities having charge of the bridge, the plaintiff had good cause to think there could be no legal objection to a shifting of its tracks in order to restore that continuity so long as the location of its tracks on the south side of the street, was- preserved. The plaintiffs should not be judged harshly for attempting to exercise what they deemed to be their legal rights within the limits of a fair and reasonable construction. If they made the effort at night for practical reasons, they had a full right to do so. If they did it at night in order to avoid friction, opposition and collision on the ground, it is rather to them credit than to their discredit.
    March 11, 1907:

      V. Gilpin Robinson, with him Isaac E. Johnson, for appellee.
    The court committed no error in dismissing the bill with costs to the defendant. The difficulty arose from the shifting of the track on the county bridge so that it was out of alignment with the old track on Chester avenue. The complainant’s course was to make terms with the county. If it could not make terms with the county then its duty was to make a formal application to the borough council for consent to the relocation and construction of its track upon Chester avenue. If such petition were presented, and the action of the borough should be unreasonable, unlawful or arbitrary complainant has its remedy. It has no standing in this proceeding.
   Opinion by

Mr. Justice Fell,

The plaintiffs, as owners and lessees, have a charter right to operate an electric railway from the city of Chester to Main street in the borough of Darby. The road enters the borough on a county bridge over Darby creek, and extends east on Chester avenue to Main street. Municipal consent to enter the borough was obtained in 1891, subject to the condition that the company should pave Chester avenue with vitrified bricks from curb to curb from Main street to Darby creek and maintain it in repair, and subject to the provision of a general ordinance that it should not “ at any time take up or remove any of the tracks or rails laid by it, except for renewal or repair, without the consent of the council first had. and obtained.” Consent of the county to use the bridge was obtained in 1893, and by agreement the track was located at the middle of the bridge. In 1904 a new bridge was built by the county, and the borough of Darby agreed with it to pay all damages for which it might become liable by reason of the construction and of the widening of the approaches. The new bridge is wider than the old one was, and the railway track located in the middle thereof does not connect with the track on Chester avenue, but is three feet, six inches south of it. The elevation of the new bridge is six inches greater than that of the old one. Without having made any application to the borough council for consent to change the location of the track on Chester avenue, so as to bring it into alignment with the track on the bridge, the plaintiffs attempted to make the change at night. This attempt was resisted by the borough authorities and other citizens, and the plaintiff’s workmen were forced to abandon it. This bill was then filed to restrain the borough, through its officers and agents, from interfering with the change of the track.

The moving of the track of the railway company to make a connection with the track on the bridge -would have made necessary the tearing up of the surface of the street for a distance of eighty feet and the elevation of the street to the height of the floor of the "bridge. The time and manner of doing this work, as well as the establishment of a new and permanent street grade, were matters under municipal control, and permission should have been asked. Until this had been asked and refused, the appellants had no standing to apply for equitable relief. On this ground the decree of the court dismissing the bill is affirmed.

It is not to be understood that we assent to the proposition that if municipal consent to move the tracks is refused, the appellants are bound hand and foot, and that the grant obtained, for which they paid in full by paving the avenue, can be made nugatory by the arbitrary withholding of consent, or that a consent given can be burdened with conditions that impose further pecuniary obligations for the right to occupy the street. While permission to change should be asked, yet it should be promptly granted without any burdensome conditions.

The decree is affirmed at the cost of the appellants.


author: Per Curiam:

text:
    Leedom v. Philadelphia, Bristol & Trenton Street Railway Company, Appellant.

      Appeals — Interlocutory order — Demurrer—Overruling demurrer.

    No appeal lies from an order of the court of common pleas overruling defendant’s demurrer to plaintiff’s statement of claim in an action of trespass. Such an order is merely interlocutory.
    Argued Feb. 12, 1907.
    Appeal, No. 301, Jan. 14, 1906, by defendant, from order of C. P. Bucks Co., May T., 1905, No. 18, overruling demurrer to statement in case of "Walter F. Leedom v. Philadelphia, Bristol & Trenton Street Railway Company.
    Appeal quashed.
    Motion to quash appeal on the ground that the order of court below was merely interlocutory, no final judgment having been entered or damages assessed.
    The docket entries showed, inter alia:
    “ March 7th, 1906, Demurrer to Plaintiff’s Statement filed.

      “ June 12, 1906, Argued and C. A. Y.
    “ September 3rd, 1906, Demurrer overruled. By the Court.
    “ September 21st, 1906, Exceptions to order overruling Defendant’s Demurrer to statement of Claim filed. . . .
    “ And now October 2nd, 1906, the Court does hereby grant the foregoing exceptions to the Defendant in the above entitled case and does hereby dismiss the same and Bill is sealed as to each and every one of said exceptions.
    “ October 3rd, 1906, Certiorari to Supreme Court came to hand.”

      Hugh B. Eastburn and Yerkes, Ross & Ross, for the motion to quash.
    The order was interlocutory: Logan v. Jennings, 4 Rawle, 355; O’Hara v. Penna. R. R. Co., 2 Grant, 241; Chadwick v. Ober, 70 Pa. 264; Woolley’s Est., 6 Pa. 351; Richardson v. Richardson, 193 Pa. 279; Arnold v. Russell Car, etc., Co., 212 Pa. 303; Kendrick v. Overstreet, 3 S. & R. 357; Gardner v. Lefevre, 1 P. & W. 73; Kindig’s App., 82 Pa. 68.

      Howard I. James and George Quintarrd Horwitz, contra, cited:
    Deemer v. Bells Run R. R. Co., 212 Pa. 491; Bradly v. Potts, 155 Pa. 418; Hale v. Hale, 32 Pa. Superior Ct. 37; Morris v. Rapid Transit Co., 215 Pa. 317.
   Per Curiam:

Quashed at bar.


text:
    Fleming’s Estate.

      Appeals — Interlocutory order — Demurrer—Overruling demurrer to petition.

    A decree of the orphans’ court overruling a demurrer to a petition to reopen and review an account theretofore confirmed, is interlocutory, and from it no appeal lies.
    Argued Feb. 26, 1907.
    Appeal, No. 281, Jan. T., 1906, by James R. Fleming et al., from decree of O. C. Wayne Co., No. 91, O. C. D. “ II ” overruling demurrer to petition in Estate of Thomas J. Fleming, deceased.
    Appeal quashed.
    Petition to reopen and review an account previously confirmed by the court.
    The administrator demurred to the petition.
    The court entered a decree overruling the demurrer. An answer was then filed.

      Error assigned was decree overruling the demurrer.

      Leonard J. Reynolds, L. M. Atkinson and D. F. Fortney, for motion to quash.
    A long line of decisions in this court holds that an appeal from any interlocutory order or decree of the orphans’ court does not lie, such order or decree not being definitive; that when any proceedings are still pending in the orphans’ court, where anything remains to be done, the order or decree is interlocutory only and not appealable, and that an appeal cannot be taken until a final disposition of the case and an order in pursuance thereof: Logan v. Jennings, 4 Rawle, 355; Eckfeldt’s Appeal, 13 Pa. 171; Snodgrass’s Appeal, 96 Pa. 420; Williams’s Est., 140 Pa. 187; Jones’s Appeal, 99 Pa. 124; Robinson v. Glancy, 69 Pa. 89; Catterson’s Appeal, 100 Pa. 9; Palethrop’s Est., 160 Pa. 316; Wistar’s Appeal, 115 Pa. 241; Gesell’s Appeal, 84 Pa. 238; Long’s Estate, 168 Pa. 341; Cherry Township v. Sullivan County, 30 Pa. Superior Ct. 502.

      James J. O’Malley, E. O. Mumford and M. J. Martin, contra.
    The order appealed from is a final order: Bradly v. Potts, 155 Pa. 418.
   Per Curiam:

Appeal quashed at bar.


author: Mr. Justice Stewart,

text:
    Beaver Borough, Appellant, v. Beaver Valley Railroad Company.

      Appeals — Assignments of error — Railroads—Equity.

      . On an appeal from a decree dismissing a bill in equity filed to restrain a railroad company from constructing a siding in a street, where it appears that it was conceded in the court below that the company had the right to construct its main line in the street, and no assignment of error raises a question to the contrary, the appellate court will not consider an argument against such right.

      Railroads — Use of streets — Right to construct siding.

    A railroad company which has the right to maintain tracks in a street 100 feet wide, may construct a siding from its main tracks, if such siding wall not constitute an unreasonable obstruction to public travel.
    Mitchell, C. J., Brown and Mestrezat, JJ., dissent.
    Argued Oct. 17, 1906.
    Appeal, No. 181, Oct. T., 1906, by plaintiff, from decree of C. P. Beaver Co., March T., 1906, No. 5, dismissing bill in equity in case of Beaver Borough v. Beaver Valley Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Bill in equity for an injunction. Before Williams, P. J., specially presiding.
    The court filed an opinion which was in part as follows :
    FINDINGS OF FACT.
    1. That the borough of Beaver is a municipal corporation, duly chartered by an act of the general assembly of the commonwealth of Pennsylvania, approved March 29, 1802, and, by a decree of the court of quarter sessions of Beaver county, entered in a proceeding at No. 2, September sessions, 1866, became subject to the provisions and entitled to the benefits of the Act of Assembly approved April 3, 1851, P. L. 320, commonly called the General Borough Act.
    2. That the defendant is a railroad corporation organized and existing under the provisions of an act of the general assembly of the commonwealth of Pennsylvania, entitled, “ An act to authorize the formation and regulation of railroad corporations,” approved April 4, 1868, and the several supplements thereto, chartered September 5, 1899, for the construction and operation of a railroad from a point, the eastern terminus being at or near a point where the Beaver and Mercer state road, commonly called Sharon road, crosses the Pittsburg and Lake Erie Railroad, in Beaver county, Pennsylvania, and the western terminus at or near a point on the Ohio river about 500 feet south of the residence of John Moore, in Borough township, in said county and state, the length of said road being 3.15 miles, intersecting the Cleveland & Pittsburg division of the Pennsylvania company’s lines, through Borough township, the borough of Beaver and the borough of Bridgewater, to a point in the borough last named, and intersecting the Pittsburg and Lake Erie division of the New York Central lines, all in the county of Beaver.
    3. That at the time, and for some time prior to the incorporation of the defendant company, and the location of its railroad on Fifth street, said street was 100 feet wide between property lines; that the roadbed of said street was forty feet wide between curb lines, the space between the said curb lines and the property lines being used partly for sidewalks and partly as a grass plot, and the sidewalks, where any were laid, being eight feet wide, laid next the curb, thus leaving twenty-two feet of an intervening grass plot.
    •4. That on September 15, 1899, the town council of the borough of Beaver passed an ordinance authorizing the construction of the railroad of the defendant company upon and along Fifth street, in said borough, in the center and at the grade thereof, placed certain burdens upon said defendant, and provided, inter alia, that cars of said railroad company should not be allowed to unnecessarily stand on said track, said ordinance having been approved by the burgess of said borough on September 15, 1899, and accepted by the defendant company on September 20, 1899.
    5. That the defendant company, in pursuance of its charter and said ordinance, had located, constructed, and was, at the time of the filing of the bill in this case, operating its railroad along and upon Fifth street, in the borough of Beayer, from the western line of Buffalo street to the eastern line of said borough, at or near Leopard lane, all within the borough of Beaver, the total length of said railroad being 3.15 miles, and of which 4,368 feet is located on said Fifth street.
    6. That in the operation of said railroad the defendant company has no fixed schedule for the running of its trains, nor does it run any passenger trains thereon; its business being confined to the carrying of freight and merchandise, and it has but one locomotive for the movement of its trains.
    7. That said company has no freight, depot or other place within said borough for the receipt and discharge of freight and merchandise to and from its" cars, but had for some time prior to and up to the filing of this bill in this case been receiving and dischargingfreight and merchandise at such points along said Fifth street as were most convenient to said company and its patrons ; that in pursuance of a bill filed by the plaintiff in this case, on November 24, 1905, a preliminary injunction was granted enjoining and restraining the defendant company, its officers, employees and workmen, from allowing cars to stand on its track, and the loading or unloading of freight or merchandise from its cars on said track, in, upon and along Fifth street, which preliminary injunction was made perpetual by an opinion filed by the court on May 29,* 1906, thus permanently enjoining the defendant company from receiving' or discharging freight or merchandise to and from its cars at any point along that part of its railroad located upon Fifth street, in said borough of Beaver.
    8. That Cook & Anderson are residents of the said borough of Beaver, and the owners of a piece or parcel of land having a frontage of 260 feet on the southerly side of said Fifth street, the eastern boundary of which is 100 feet west of the westerly line of Elk street, and about 1,730 feet west of the westerly line of Sharon road.
    9. That the said firm of Cook & Anderson are engaged in the business of general contracting, and have erected on said land an office and other buildings and sheds used in the prosecution of their business, and handle large quantities of lumber, brick, plaster, hardware and other building materials, amounting in the aggregate to something like 100 or 150 car loads per year.
    10. That some time during the year 1903, and again in September of 1904, Fred. H. Cook, of the firm of Cook & Anderson, appeared before the council of the borough of Beaver and asked for permission to put in a switch leading from the main line of the defendant’s railroad to their place of business located on the south side of Fifth street; that the council of said borough laid said request on the table, and, as far as the testimony in this case shows, no further action has been taken thereon.
    11. That after the granting of the preliminary injunction restraining the defendant company from loading and unloading its cars upon that part of its track located in and upon Fifth street, in said borough, and before the final determination thereof, the defendant company, on February 26, 1906, by and with the consent of said firm of Cook & Anderson, began making the necessary excavations preparatory to constructing a switch from its main line to the lot or premises of said firm, for the purpose of enabling the defendant company to receive and deliver freight and merchandise from and to said firm.
    12. ' That the switch or turn-out leading from the main line of the defendant’s railroad on Fifth street to the property of Cook & Anderson, located on the south side thereof, is necessary for the proper and convenient operation of said railroad in the receipt and delivery of freight from and to the said firm, and said business cannot be reasonably handled in any other manner.
    13. That if said switch is laid at grade from the 'main line of the defendant’s railroad into the property of Cook & Anderson, as proposed by the defendant company and averred in its answer, it will not be an unreasonable obstruction to public travel along said Fifth street.
    CONCLUSIONS OP LAW.
    1. The letters patent of the Beaver Valley Railroad Company, in connection with the ordinance passed by the council of the borough of Beaver on September 15, 1899, and accepted, in writing, by the defendant company on September 20, 1899, vested in said company the right to construct, maintain and operate a railroad in, upon and along Fifth street in the borough of Beaver.
    2. The right to construct, maintain and operate a railroad in, upon and along Fifth street in the borough of Beaver, vested in the defendant company by its charter and said ordinance of the borough of Beaver, carried with it the right to construct, maintain and operate such turn-outs, switches, sidings and other appendages as are reasonably necessary for the convenient operation of said railroad.
    3. When permission was granted by the borough of Beaver to the defendant company to lay and construct its railroad in, upon and along Fifth street, by the ordinance approved September 15, 1899, the right to construct, maintain and operate such turn-outs and switches as are reasonably necessary' to accommodate the business establishments along said Fifth street was necessarily implied.
    4. That the preliminary injunction heretofore granted should be dissolved and the bill dismissed at the costs of the plaintiff.

      Error assigned was decree of the court dismissing the bill.

      WilUam A. McOonnel, with him John B. MeOlwre, for appellant.

      James L. Bogan, with him John M. Buehamcm, for appellee.

      April 1, 1907:
   Opinion by

Mr. Justice Stewart,

The Beaver Valley Railroad Company, organized under the Act of April 4, 1868, P. L. 62 and its several supplements, in the exercise of its corporate rights and privileges, constructed, and has been operating for several years past, a line of railroad in the county of Beaver, between three and four miles in length, connecting the Pittsburg and Lake Erie Railroad with the Cleveland and Pittsburg Railroad. With respect to the termini of the road, the borough of Beaver is intermediate. By and with the consent of the municipal authorities, expressed in an ordinance passed September 15, 1899, the railroad company constructed its main track upon Fifth street in the borough of Beaver longitudinally for a distance of 4,368 feet. In the early part of the present year the company, for greater convenience in receipt and delivery of freight at that point, began the construction of a switch and siding, from its main line on said Fifth street, to the warehouse and yards of Cook & Anderson, situate on the south side of said street. Thereupon the borough of Beaver filed its bill alleging that the company, in attempting to construct such siding, was acting without authority of laiv, and praying that it be restrained. The appeal is from the decree dismissing' the bill after final hearing.

The question so earnestly pressed upon our attention in the argument, as to the right of the railroad company under its charter to construct and 'maintain a track upon the public street, even with municipal consent, is not raised by any assignment of error; nor could it bo. Since it was not brought to the attention of the court below, the settled rules of practice forbid its consideration hero. An exception cannot be urged in the appellate court on different grounds than those taken in the court below. The right of the railroad company to maintain its tracks on Fifth street was conceded in the court below, and for present purposes must be conceded here. The only question then before us is, has the company the right to construct the proposed switch and siding from its established main line upon the public street for the purpose indicated? The 13th finding of fact by the court below was as follows: “ If said switch is laid at grade from the main line of defendant’s railroad to the property of Cook & Anderson, as proposed by the defendant company, and averred in its. answer, it will not be an unreasonable obstruction to public travel along said Fifth street.” No attempt was made to controvert this finding. In view of the fact that Fifth street is 100 feet wide this is not surprising. This is not then the case of a railroad company attempting, for its own convenience, and under no compelling condition, to appropriate with the consent of the borough, an entire street, thereby diverting it from its original use and purpose, and defeating public enjoyment of the same. The use of the switch and siding would be consistent with the continued use of the street as a public thoroughfare. Under such circumstances the right of the company in the premises is not open to question. The right to build the switch and siding is included as a necessary incident in the right to build a railroad. So much we have repeatedly asserted. In Cleveland and Pittsburg R. R. Company v. Speer, 56 Pa. 325, we said that even where there is no expressed power in the charter to construct switches, it is clearly to be inferred from the general power conferred, and the essential purposes of the grant. In Getz’s Appeal, 10 W. N. C. 453, and in a number of other cases, we have said the same thing. To what extent this right may be exercised where the continued maintenance of the street as a public thoroughfare is involved, is a question not raised in this proceeding. It is enough to know that in the present case no such interference is contemplated or would result.

The appeal is dismissed at the costs of the appellants.

Mitchell, C. J., Brown and Mestrezat, JJ., dissent.