Mahanoy Township v. Scholly

Mr. Justice Gordon

delivered the opinion of the court,

The court below fairly and properly instructed the jury upon the points submitted by the parties in this case, and we think there is nothing requiring special discussion, except the question raised by the reserved point, which point is as follows: “ That by the Act of Assembly of the 19th of January 1860, relating to the selling of the repairing of the public roads, in Mahanoy .township, all control over the repairing and opening of the roads of the township is put into the hands of a contractor, and the township cannot be held liable for his negligence, and the plaintiff cannot recover in this ease.” Upon this point the court entered judgment for the plaintiff. In this we think they were right. The question is a very simple one; it is but whether the act above mentioned put the contractor in the place of the township in the control and supervision of the roads. Has the township discharged its whole duty to the public, when it has contracted for the making and repairing of its roads ? This question is answered in the mere statement thereof. The affirmance of the proposition would be contrary to the express terms of the act itself; for the supervisor is to inspect the making and repairing of the public roads at least once every month, and he is to be fully satisfied that the contracts have been fully complied with before the contractors are paid for their work. Not only so, but these contractors are required to give bond for the proper performance and fulfilment of their several contracts, and also, to save and keep harmless, the township from damages consequent upon accident resulting from neglect in keeping the roads in proper order.

These provisions indicate very clearly the legislative intent to charge the township with the duty of seeing that its roads were properly opened and repaired, and that it should not be relieved from the responsibility of accidents resulting from a want of proper construction or repair. This case has nothing in common with that of Painter v. Pittsburgh, 10 Wright 213, and others of that class, for the accident did not happen during the progress of the Avork and Avhilst the contractor had the road in his exclusive control, but after it Avas turned over to the toAvnship as a finished job and in proper repair. If, as the jury seem to have found, this road was not of a safe Avidth, or not properly guarded at the place where the accident happened, whose fault Avas it ? Not, surely, of him who had merely the job of keeping it in ordinary repair; it Avas not his business either to open the Avay to a proper Avidth or to build guard walls. His Avhole duty Avas performed in repairing dilapidations, and if he did this properly he filled his contract, and he Avas obliged to do nothing more. It may be that the contractor Avho opened the road, if indeed it Avere opened by contract, may have been in default; but, if so, the township Avas no less in default in accepting and opening to public travel a defective highAvay; it shouldered the responsibility when it approved the defective work. The same rule that applies to the construction of a road must apply as Avell to its repair; for it is the duty of the township officers not only to contract for the work necessary for the proper maintenance of the highways, but to see that it is properly executed. This is exactly what are ruled in Newlin Township v. Davis, 27 P. F. Smith 317; for in that case it Avas beyond question that it Avas the duty of the railroad company to build a proper and safe bridge and to keep it so; but we held, notAvithstanding, that the township owed the duty to the public to see that it was so built and kept, and that an accident resulting from the Avant of the performance of such duty was chargeable to the township. If a county contracts for the building of a bridge, and it is accepted and opened for public use, and afterwards, from some gross and obvious defect in the Avork, it falls and injures some one or destroys his property, may the county defend on the ground that the contractor Avas in default ? Certainly not, for it Avas the duty .of the county officers to see that the contractor did his duty.

Again, the very manner in which this power to contract is exercised must, to a great extent, affect the work to be done. If the contract be for the opening of a road twelve feet in width, Ayhen it ought to be tAventy-five feet, it is the toAvnship, and not the contractor, which is to blame if an accident happens for want of road-room. If the contract be that a road is to be repaired with clay when it should be repaired with stone, no blame ought to attach to the contractor if the rains wash away his work. If, as in the present case, this road should have been protected by a guard wall or railing, whose was the fault that it was not so protected ? The person who undertook to keep the way in ordinary repair was not bound to do such work, however necessary for the public safety. Illustrations of this kind might be multiplied indefinitely, but there have been enough to show that, in the very nature of things, the township must be responsible for the proper construction and repair of its roads.

The weak point of the defence is found in the supposition that the power given to the township.to contract for the doing of that which before had been done by its officers changed the character of its responsibility to the public. But a little reflection must dispel this idea; for, after all, the roads are the roads of the township, and the means employed by it-for their construction can make no difference as to its responsibility for their character. For, whether constructed by contractor or by supervisor they are constructed for the township, and we must come, eventually, to the one final and conclusive question: are they safe or unsafe ? If they are in good order it is the township which, by its judicious supervision, has made them so ; if unsafe it is the township, alone, that has the money and power to make them safe. On the other hand, those who trayel upon these public thoroughfares have no control or power over those who make or repair them, and it is but poor grace to the unfortunate traveller to tell him that his remedy, for the damages he may have suffered, in consequence of a fault beyond his power of remedy, is by suit against some contractor who may be insolvent or out of reach.

The judgment is affirmed.