Smith v. Pennsylvania Railroad , 201 Pa. 131 ( 1902 )

Opinion by

Mr. Justice Felu,

This action was based oil the allegation that the defendant company had constructed a bridge over its tracks in a negligent manner. The proof of negligence related to the design of the bridge only, and with this it did not appear that the defendant had anything to do. The nonsuit was entered on the ground that the defendant had incurred no liability to the public by building the bridge.

The bridge was constructed under these circumstances. In 1892 three streets crossed the tracks of the railroad company in the borough of Derry. The borough council desired an overhead crossing to take the place of the three grade crossings, and agreed with the railroad company to vacate the streets at the crossings if the company would construct and maintain a bridge over its tracks at a point between two of the streets. In pursuance of this agreement the streets were vacated by action of the council, and the bridge was built by the company. The agreement provided for the kind of a bridge to be built, and for the details of design and construction, and that the streets should remain vacated and closed only as long as the bridge should be kept in good order and repair.

If the bridge had been built by the railroad company under its power to change the location of a public highway because of a necessity arising in the construction of its road, it would be responsible for defects in design and construction. The duty to supply a road in place of one taken or vacated is imposed on it by the act of 1848 and for neglect in the performanee of this duty it is directly responsible to a party injured: Penna. R. R. Co. v. Boro. of Irwin, 85 Pa. 336; Gates v. Penna. R. R. Co., 150 Pa. 50. Bub the bridge was not built under the power conferred by the act of assembly, and in building it the company assumed no duty imposed by the statute. The railroad had been in operation fifty years, and no change was being made in the location or use of its tracks at tins point. All that was done was by the direct authority of the borough in the control and management of its streets, and their vacation was conditioned on the proper maintenance of the bridge. The agreement states : “ It is the desire of the council of said borough to have an overhead bridge constructed across the tracks of the said railroad company in the said borough, which shall take the place of and be a full substitute for all the grade crossings, on said several streets,” and “ The said Pennsylvania Railroad Company favoring the desire of the borough council is willing to erect an overhead bridge as herein described, and maintain the same.” The company did not take any part of the streets nor assume to exercise any control over them. Indeed it is very doubtful whether under any circumstances it had the power to do what was done in regard to them. Doubtless it was interested to avoid grade crossings, and as an inducement to the borough to vacate the streets it offered to erect and maintain the bridge. In so doing it incurred no obligation except its contract obligation to the borough. This obligation was fully discharged as to the construction by the acceptance of the bridge by the borough council. The judgment is affirmed.