Commonwealth v. Northern Central Railway Co. , 7 Pa. Super. 234 ( 1898 )

Opinion by

Beaver, J.,

The defendant was indicted in the court below for erecting and maintaining a common nuisance, by the construction, in and over the Plarrisburg, Carlisle & Chambersburg Turnpike Road, of “ embankments of clay, dirt and stone and two stone walls or abutments facing said highway and an overhead iron bridge called a Y5 spanning said highway,” and continuously thereafter unlawfully and injuriously permitting and suffering the said embankments, etc., to remain in, on and upon the said public highway.

The objection to the maintenance of the abutments and bridge was that trade and traffic were impeded and limited in two directions : first, by the limited distance between the stone piers or abutments, and especially by the intrusion of one of the abutments into the roadway of the turnpike, which not only obstructed travel but .interfered with the view in both directions ; and second, by the distance between the bed of the roadway and the overhead bridge which limited the height of loads of merchandise which could be carried thereunder.

The defendant attempted to justify the erection and maintenance of the abutments and bridge by offering to show that the entrance to the Harrisburg bridge, erected over the Susquehanna river in the vicinity of its Y bridge, was both lower and narrower than the opening between the abutments and the road bed and the iron overhead bridge at the crossing of the turnpike. The rejection of their offers to show this constitutes the first and second assignments of error.

The answer to this is four-fold: First, the obligations and duties of the defendant to the traveling public cannot be measured by the manner in which another corporation discharges its obligations in the same direction. The maintenance of a nuisance by A cannot be justified upon the ground that B maintains a similar nuisance in the same vicinity. Second. Turnpike companies and bridge companies, differing as they do in regard to the specific objects of their creation, the obligations of the one class are not to be measured by the manner in which the other class discharges its duties to the public. Third. It does not appear that all the traffic which passed under the Y bridge necessarily passed through the Harrisburg bridge, and Fourth. The testimony excluded, as shown in the first and second assignments of error was practically admitted later by the court, under the following offer: “We propose to ask the witness on the stand whether he did not measure the width and elevation at the opening of the Harrisburg bridge and some feet inside the Flarrisburg bridge; this to be followed by evidence showing that at the time of the location of this Y) the nuisance complained of in the present bill of indictment, the Harrisburg bridge afforded the only means of access from Cumberland county into the city of Harrisburg, and that the opening of the mouth of the bridge and some distance inside the bridge is less than the width and height at the particular point complained of in this bill of indictment; also to be followed by evidence that the width of the new bridge built across the Susquehanna river is only nineteen feet and a half, for the purpose of showing that the elevation and width at the place complained of in the bill of indictment, exceeds that of the old bridge or the new bridge across to Harrisburg, and to negative any idea of malice on part of the defendant.” In respect to this offer the court said: “The evidence will be received, to be considered by the jury in donneetion with the other testimony in the case, in determining whether or not the defendant has unreasonably abridged and inconvenienced the public use of the locus in quo. The objections are overruled and an exception noted for the commonwealth.”

The fourth assignment of error relates to the answer of the court to the defendant’s eighth point as follows: “ The Harrisburg bridge at the time of the construction of the Y bridge by the Northern Central Railway Co. was the only roadway leading from the turnpike and the lower end of Cumberland county into Harrisburg and the clearance given the Y, being in excess of that in the Harrisburg bridge, must be admitted to have been reasonable and, therefore, is not a nuisance.” This point, for the reasons already stated, was properly refused by the court.

The third assignment of error, which relates to the refusal of the court to affirm the defendant’s sixth point, cannot be sustained. The point requests the court to charge, as a matter of law, what was clearly a fact for the consideration of the jury and, for this reason, if for no other, the refusal to affirm was entirely proper.

The fifth and sixth assignments of error relate practically to tbe same question. The answer to the defendant’s seventh point, as set forth in the fifth assignment of error, taken in connection with the general instructions upon the subject complained of in the sixth assignment, was correct. The issue was clearly and fairly stated by the court in the following-paragraph : “ The true question, therefore, is, has the defendant unlawfully invaded the rights of the people ? Has it done that in the erection of the bridge which worked injurious results to the public ? Has it made an unreasonable obstruction upon a public highway ? Does the bridge complained of unreasonably inconvenience or incommode public travel ? If you answer those inquiries in the affirmative, your verdict should be ‘ guilty.’ If in the negative, then it should be ‘ not guilty.’ ” It is difficult to imagine how the issue could have been more tersely and clearly put. The facts were undoubtedly for the jury, and the court would have been in error in-affirming the defendant’s ninth point complained of in its seventh assignment of error which was that “ under the evidence in this case and the law applicable thereto, a verdict of acquittal should be rendered by the jury.”

Upon a careful review of the whole case, we can discover no error of which the defendant has a right to complain. The judgment is, therefore, affirmed.