Rogers v. Philadelphia Traction Co.

Opinion by

Mr. Chief Justice Sterrett,

Defendant ’ company’s fourth point for charge was affirmed, and all the others, containing binding instructions for defendant, were refused. In thus refusing to affirm either of the latter points, the learned trial judge was so clearly right that neither of the questions involved therein requires discussion, and they are accordingly dismissed without further comment.

In view of the testimony of plaintiff’s witness, Hogan, and the admissions made on cross-examination- by defendant’s witness, Craig, the learned judge might well have submitted to the jury the question of defendant’s negligence in the construction and operation of its machinery, and sustained a verdict on that ground; but, instead of doing so, he stated to the jury that he recalled no evidence of negligence on the part of the defendant, and proceeded to instruct them that if, in consequence of the operation by defendant of its machinery in the building, there was necessarily a special damage or injury suffered by the plaintiff, apart from what was common to the neighborhood and to people generally, the plaintiff might recover to the extent of the injury thus specially sustained. The correctness of this instruction is challenged in the seventh specification. In addition to that, the defendant demurred to the second and third counts of the statement, because neither of them contained any averment of negligence, either in the construction or operation of defendant’s machinery, etc. Refusal to sustain the demurrer is the subject of complaint in the first specification.

Under that ruling and the foregoing instructions, the jury found, on quite sufficient evidence, that plaintiff was specially damaged by the operation of defendant company’s machinery, and a general verdict for the amount of the damages thus sustained by him was accordingly rendered and judgment entered thereon. This necessarily involves the question of defendant’s liability in the absence of evidence of actual negligence; and that is the controlling question in this case.

By its charter Act of incorporation of June 13, 1883, see. 6, P. L. 123, the defendant company was created “for the construction and operation of motors and cables, and the necessary apparatus and mechanical fixtures for applying and operating the same.” So far as relates to this case, that is the extent of its powers. Its authority to hold real and personal estate necessary for its purposes does not in any way extend its charter power or privileges, and it is conceded that it is not invested with the power of eminent domain. There is certainly nothing in its charter to relieve the defendant from liability for the special injury which the plaintiff has suffered in consequence of its operations on its own land, as determined by the verdict. As an artificial person it cannot, any more than a natural person, escape liability for special injury done to others, unless it can be shown that because it is a mere creature of the law it enjoys immunity from liability which natural persons do not; but no such proposition as that has ever been recognized in any weilconsidered case. No authority for it can be found in Lippincott v. Railroad, 116 Pa. 472, Railroad v. Marchant, 119 Pa. 541, or any of that line of cases. It is not only untenable in law, but it is lacking in reason. If several individuals had purchased defendant company’s lot and erected thereon the machinery and appliances that it did, and had operated the same as it has done to the great and manifest special injury of the plaintiff, no one would venture to question their liability to respond in damages.

In several cases, among which are Pottstown Gas Co. v. Murphy, 39 Pa. 257, and Hauck v. Pipe Line Co., 153 Pa. 366, it has been held that where a corporation has no right of eminent domain, the operation of its works, causing special physical injury to another’s property, is virtually an actionable nuisance. The first of these was the case of an incorporated gas company, authorized to supply gas to the borough and such individuals and corporations as might desire the same; to produce, sell and distribute gas for the production of artificial light; to make and erect the necessary apparatus and manufactory introducing the same; to construct the necessary machinery; to purchase and prepare the necessary materials, with the right to enter upon any public street, lane or highway, for the purpose of laying the necessary pipes, etc. The company, having purchased real estate necessary for carrying on its business, erected its works and put them in operation. The fluids percolated through the soil from the gas works, contaminated the water in plaintiff’s well, and injured his property, for which he brought suit. The defense was that the gas companj being authorized by law to erect and operate its works for the purpose -of manufacturing gas for the public was not responsible for the injury unless shown to have been caused by its negligence. It was held that this defense could not be sustained. Mr. Chief Justice Lowreg, speaking for the court said: “ The defendants think that as a corporation authorized by statute to carry on this business, and to purchase in fee simple such real estate as may be necessary for it, they are not answerable for such consequential damages as are complained of here. We cannot adopt this view. No such exemption is involved in the fact of incorporation, nor in the privilege of buying land. The principle they invoke applies only where a corporation clothed with a portion of the state’s right of eminent domain takes private property for public use on making proper compensation, and where such damages are not part of the compensation required.” This case was afterwards cited with approval and the principle thereof reaffirmed in Hauck v. The Pipe Line, supra. In the latter, the defense was that the business of the defendant company was not only lawful but it was conducted with due care, and that, in the absence of evidence that the escape of the oil was due to the negligence of the company, the latter was not liable. In holding that this defense was untenable this Court, approving and adopting that portion of tbe learned trial judge’s charge embraced in the tenth specification, said: “ If the mere fact that the business is a lawful business and has been conducted with care would be a defense where a neighbor’s land has been injured in consequence of the business carried on there, the escape of gas, for instance, or the escape of oil, the result would be that a man might lose his farm; might be compelled to leave it, and have no compensation, simply because the business which brought about this loss was a lawful business and was carried on carefully. That is not the law. No man’s property can be taken, directly or indirectly, without compensation under the law of this state. Hence there are cases, and a great many of them, where a defendant is held liable in damages although luis business is lawful and he has exercised care in carrying it on.”

Other authorities to the same effect might be cited, but in view of the evidence and the facts established by the verdict, enough has been said to show that the defendant company has no just reason to complain of the ruling of the learned trial judge or his instructions to the jury. Neither of the specifications of error is sustained.

Judgment affirmed.