McKeesport Borough v. Wood

Opinion by

Mr. Justice Gbeen,

The learned court below decided this case upon the proposition of fact that “ Before any considerable portion of the street was paved, and therefore the portion in front of Mr. Wood’s property was paved, the street car company, by the consent of councils, put down an additional track.” The court held, “ That the property holders, having agreed to pay for the paving of that portion of the.street that lay outside of the portion occupied by the street railway with its tracks, and another track having been put down before the paving was done at all at this part of the street, the city can only recover for the paving up to within two feet of the tracks as laid when the improvement was made.”

It is apparent, from the foregoing, that the decision was based entirely upon the ground that the city never did put down the pavement, up to within two feet of the rail of the tracks of the railway company, as the street and track were when the agreement was made, and therefore they could not require the defendant to pay them as if they had done so. If the learned judge was correct in his assumption of the fact, his conclusion was certainly correct.

But the borough, appealing from the decision, alleges in the history of the case, “ after the borough had entirely completed the improvement in front of defendant’s property, the railway company, by virtue of its new ordinance, tore up the pavement and laid down two tracks in place of the former single track, replacing the pavement at its own expense.” Of course, if this statement of the facts is correct, the borough is entitled to recover the full amount of its claim, because then it did in point of fact lay the whole of the pavement up to within two feet of the rail of the tracks of the railway company as the track was when the agreement was made, and was entitled under the contract to be paid the full price for so doing.

The learned counsel for the borough, appellant, argue the case upon this assumption of fact, and of course, if they are correct in their facts, their position is well taken. But the defendant asserts in the counter statement that, “ Before the work was done in front of Mr. Wood’s property the passenger railway company laid its second track,” and the learned counsel for the defendant argue their case upon that assumption.

It is rather remarkable that there should be such a radical difference in the statement and assumption of the controlling fact of the case. Counsel on each side discuss the question from their own standpoint of fact, and therefore the question is what was the real state of the facts, and this is a subject which is not discussed at all by the counsel on either side. The writer has read all the testimony very closely and critically, and while he thinks that the jury would have been justified in finding that the pavement was not actually laid at the time the second track was laid, the evidence is quite uncertain and somewhat confusing on that subject. But the affidavit of defence contains such remarkable statements in reference to this matter that we do not feel at liberty to sustain the binding direction given by the learned court below to the jury. It says “ That after the street had been paved in front of the defendant’s property, it was torn up and two tracks of the said passenger railway company were laid upon said street.” The same is repeated further on in the affidavit, and the charge is made that the borough and the railway company were in collusion in tearing up the pavement after it had been laid,- and in laying two tracks instead of one. In view of this statement in the affidavit, so inconsistent with the theory upon which the court charged the jury, and with the present contention of the defendant, we think it was error to instruct the jury that, Another track having been put down before the paving was ■done at all at this part of the street, the city can only recover for the paving up to within two feet of the tracks as laid when the improvement was made.”

Judgment reversed and new venire awarded.