Reading v. United Traction Co. , 215 Pa. 250 ( 1906 )

Opinion by

Mr. Justice Brown,

The judgment recovered by the city of Reading against the United Traction Company was for moneys expended in doing that which, under the evidence and instructions of the court, the jury found ought to have been done by the traction company on those portions of the streets of the city occupied by it. The claim of the city is made up in part of the cost of paving with asphalt from the outside of the rails to the limit of the sills. As to this item, amounting, without interest, to $1,848.75, the court instructed the jury to find for the plaintiff, for the manifestly correct reason that the street railway companies, which leased their lines to the appellant, had “ assumed the duty of putting down asphalt pavement on the outside' of their rails to the extent of the sills whenever the city might undertake to put down asphalt on the balance of the street.” As to the remaining portion of the city’s claim — $8,292.48—which the jury found it had expended in making necessary repairs on those portions of the streets between the rails, the appellant contends that there ought not to have been a recovery, for the reason that its duty as to the space between the rails is fixed by the charters and ordinances under which its tracks were laid on the streets, and as it is not expressly required by them to repair between the rails, it is not liable for the amount expended by the city in doing so.

The streets of a city belong to the state for the use of the people at large. To the municipality, as its agent, it commits the duty of at all times keeping them in proper repair for the convenience and safety of the public. This duty of the municipality does not shift, except when it is expressly or impliedly imposed upon another. Before the adoption of our present constitution street railway companies were authorized to occupy streets without municipal consent; now they can be authorized to do so only with such consent; but, no matter how authorized, the authority under which streets are occupied, unless expressly relieving such companies from the duty of keeping in repair those portions of the streets occupied by their tracks, carries with it a liability on their part to do so. When street railway companies occupy portions of streets, such portions are no longer in the free, unencumbered and exclusive use of the public, but to the companies is given not only a concurrent, but a superior right to use them, and with this right goes a corresponding responsibility. As between a street railway company and a municipality whose streets are occupied by such a company, the duty no longer rests upon th.e municipality of keeping in repair those portions of the streets used by the company, but devolves upon the company acquiring the right to use them for its corporate purposes. When the state gives up a portion of one of its highways to a particular use, without providing that what had been the duty of the municipality as to it shall continue, such duty devolves upon the party acquiring the right to use it, and a street railway company given the right to use such portion of a street as is needed for its tracks, in taking charge of it, is charged with the duty of properly maintaining it. It is because the municipality, as the agent of the state, has charge of the streets, that it must maintain and keep them in proper repair, and when the state permits this charge, as to a portion of a street, to be committed to another, it must be understood as imposing upon such party the responsibility that formerly rested upon the municipality, unless in the grant, or in the municipal consent thereto, of the right to use a portion of the street, such responsibility is expressly withheld and its imposition continued upon the municipality.

In submitting the claim of the appellee to the jury they were instructed that the city could not recover, unless they found, first, that the repairs made by the city were necessary and proper; secondly, that the appellant had been notified by the city to repair the tracks by paving them with asphalt; and thirdly, that the repairing by asphalting was reasonable, necessary and proper, taking into consideration the condition of the rest of the street and the condition in which the city was about to place it. The findings of the jury on these three questions were in favor of the appellee.

We do not deem it needful to say more about this ease. It is clearly ruled by the general principles announced in Reading v. United Traction Co., 202 Pa. 571, as is demonstrated in the opinion of the court overruling the motion for a new trial. In that case, in affirming the judgment below, we adopted, as correctly expressive of our views, the words of the present learned trial judge, that “ It is recognized, with substantial unanimity, that a railway company, whether general or passenger, is bound to keep the portions of streets occupied by its right of way in good condition, even in the absence of any express contract or statutory direction to that effect: 2 Wood, Railroads, pp. 758, 760; Pierce, Railroads, p. 245; Mills, Em. Dom. sec. 198 ; Elliott, Roads and Streets, p. 591; Worster v. R. R. Co., 50 N. Y. 203 ; North Hudson County Ry. Co. v. Hoboken, 41 N. J. L. 71; Ry. Co. v. State, 87 Tenn. 746.”

Judgment affirmed.