Penn. Schuyl. V. R. v. Walsh , 124 Pa. 544 ( 1889 )

Opinion,

Mb. Chief Justice Paxson :

While there are numerous assignments of error in this case, the fifth presents the only question which requires discussion. The defendant below asked the court to instruct the jury that “ there can be no compensation for injury to persons or property unaccompanied with negligence, arising from the operation or use of the defendant’s railroad, constructed on a public street in the borough of Norristown, and so authorized by law, when no land is taken from the plaintiffs, nor the grade of the street changed by excavation or embankments by the defendant in front of the plaintiff’s premises, as distinguished from its con-, struction, and if the jury does not find negligence on the part of the defendant causing such injury, the plaintiffs are not entitled to a verdict; ” which point the court below answered as follows : “ Refused; it is true that the ordinary and proper use of ■ a railroad cannot be regarded as an element of damage, unless the construction of the railroad interferes with the property of the plaintiffs; but we cannot say that if the jury find that this railroad is not negligently operated, they must find a verdict against the plaintiffs.”

The plaintiffs below are the owners of a certain property situated in the borough of Norristown, having a front of about 196 feet on Lafayette street. Upon this property there is a church building about thirty feet back from said street, in the rear basement of which is a school-room; a parsonage about 40 feet back from said street, and three tenement houses on the line of said street. The defendant company has constructed its railroad upon Lafayette street, and has laid its tracks close to the curbstone in front of said church, parsonage, and tenement houses, and has since continuously and constantly run locomotives and trains of passenger and freight ears over said tracks. This action was brought in the court below for damages arising from the erection and construction of the defendant’s road; the allegation being that said street or highway is “ obstructed, closed, and destroyed, and all access to the front of said messuage and tenement, parsonage, church edifice, and school is prevented, cut off, and taken away, and the same rendered difficult and dangerous of approach, and the said parsonage, church edifice, and school rendered unfit and unsafe for use as a parsonage, church and school, and their value wholly and totally destroyed.”

We have recently discussed so fully the question of consequential injuries resulting from the erection and construction of raihoads that a further elaboration of the subject is deemed unnecessary. Our latest case is Penna. Railroad Company v. Marchant, 119 Pa. 541, in which it was held that the word “ injury ” or (injured) as used in § 8,' article XYI. of the constitution, means such a legal wrong as would be the subject of an action for damages at common law; that for such injuries both corporations and individuals now stand upon the same plane of responsibility. In that case, as in the prior case of Railroad Company v. Lippincott, 116 Pa. 472, there Avas no injury to the property by reason of the erection and construction of the road, and we held that the constitutional provision Avas not intended to apply to injuries which were the result merely of the operation of the road, as distinguished from its construction, and that in such case there could be no recovery for -the annoyance of smoke, noise, and cinders, etc., caused by the running of the company’s trains, unaccompanied with negligence; in other words, that the injuries resulting from the exercise of a lawful business, in a lawful manner, without negligence and without malice, are damnum absque injuria. We cannot, however, apply that rule to this case for obvious reasons.

In Railroad Company v. Lippincott, and Railroad Company v. Marehant, supra, as in this case, there was no actual taking of any portion of the plaintiffs’ property. But there the analogy ceases. In the cases cited there was no injury by reason of the construction of the road; here there was an injury and a serious one, the direct result of the construction. The track was laid close to the curbstone on the side of tbe street next to the plaintiffs’ property, by means of which the access thereto if not actually cut off, was rendered dangerous. In this respect the case is upon all fours with the Railroad Company v. Duncan, 111 Pa. 352, and County of Chester v. Brower, 117 Pa. 647.

It was urged, however, that the mere laying down of the tracks in front of the plaintiffs’ property was not of itself any injury; that it was a benefit in view of tbe fact that the street bad been greatly improved by having been repaved with Belgian blocks in a superior manner, and that the injury was solely the result of the use and operation of the road. This is plausible but unsound. Where the question is the obstruction of access to a property by the building of a railroad, it is impossible to separate tbe construction from tlie operation of the road. Such a doctrine would be a misapplication of tbe rule laid down in Railroad Company v. Marehant, supra. It would be an unsavory technicality to hold that a railroad laid down by the curb in front of a man’s door, with trains constantly passing and repassing, did not interfere with his access to his house, and was not an injury caused by the construction of the road. No authority for such a proposition can be found in anything tliis court has ever said. We are of opinion tbat in the ease in hand there was an injury arising from the erection and construction. This being so, it stands upon the same footing as to consequential injuries as if it bad been an actual taking of a portion of the plaintiffs’ property.

Judgment affirmed.