Foehr v. New York Short Line Railroad

40 Pa. Super. 7, 1909 Pa. Super. LEXIS 558

Opinion

Opinion by

Rice, P. J.,

The plaintiff’s right of way, which he claims was the only available way he had for hauling the products of his farm to the public highway and thence to market, was derived by grant from Clara Murray of “the free use and privilege of a roadway as now laid out about fifty feet wide between and from the farm land of said William Foehr,” beginning at the plaintiff’s land at a point on the north side of Pennypack creek, “thence up the said creek the several courses on the brink thereof” to a certain mill ?ace and thence “up the several courses thereof” to the public highway known as the Krewstown road. This private road had been used by the owners and occupiers of the plaintiff’s farm for a number of years prior to his purchase. Several years after he became owner of the farm and received the grant above referred to, the defendant company acquired title to the Murray farm over which the private road was laid, and constructed a railroad and a bridge therefor which crossed Penny-pack creek and the private road. The plaintiff brought this action to recover damages for alleged obstructions of his right of way, and on the trial claimed that part of the permanent pier encroaches thereon; that part of the temporary trestle and other temporary structures were erected and maintained thereon and materially obstructed it; and that it was further obstructed by the temporary deposit thereon of sand, lumber, stone and other materials used in the construction of the bridge.

We cannot agree with the defendant’s counsel in his contention that there was no evidence that any part of the permanent pier of the railroad bridge was built upon the traveled roadway, the use of which was granted to the plaintiff. Throughout his testimony the plaintiff persisted in his claim that the pier encroaches somewhat upon his right of way. It is true, some expressions in his testimony upon that subject, taken by themselves, tend to show that this claim was based on his erroneous supposition that irrespective of the width to which the roadway was actually laid out, as indicated by the travel and other marks on the ground, his grant gave him a right of way over the entire strip of ground fifty feet wide along the brink of the creek, yet the court would scarcely have been warranted in charging the jury that his testimony taken as a whole would not support a finding that the pier encroaches upon the roadway as actually laid out and existing at the time of the grant to him. Furthermore, that allegation of fact does not rest on his unsatisfactory testimony alone. Another witness testified moré clearly that it encroaches on the traveled roadway about five or six feet, as near as he could judge. The question was one of fact, and although the evidence adduced by the defendant seems to us more satisfactory and convincing than that adduced by the plaintiff, it was the province of the jury to decide it under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if it should deem the verdict contrary to the weight of the evidence: Reel v. Elder, 62 Pa. 308; Perkiomen R. R. Co. v. Kremer, 218 Pa. 641. The fourth and fifth assignments of error are overruled.

The objection that the fact above considered was not relevant under the pleadings, because no mention is made in the statement of claim of the encroachment of the pier, was not raised in the court below, so far as the record shows, and is not distinctly raised here by any assignment of error. Moreover, a perusal of the defendant’s points and the report of the trial shows very clearly, we think, that the case was tried on the theory that it was a material and relevant fact. The defendant not only did not object to the evidence upon the subject adduced by the plaintiff, but on its own part introduced much evidence upon the same subject. Its counsel did not specifically request instructions to the jury that there could be no recovery on the ground of the encroachment of the pier, if the jury should find that fact, but did request the court to charge that if the jury found that fact, the plaintiff could only recover for the actual loss shown by him to have been caused by the encroachment from the time it was placed there to the date of bringing suit. The learned judge affirmed the point, and could not have gone further without being more zealous than counsel. He might well have inferred that the defendant deemed the statement of claim broad enough to sustain recovery for en-. croachment of the pier, or did not desire to raise the technical objection that it was not. After a trial judge has submitted a question to a jury from the standpoint from which both parties to the issue manifestly have tried it, the one against whom the verdict is rendered should not ordinarily be permitted on appeal to question the correctness of the submission, except in cases where manifest injustice results from it: Carpenter v. Lancaster, 212 Pa. 581. See also Hartley v. Decker, 89 Pa. 470; Taylor v. Sattler, 6 Pa. Superior Ct. 229.

But apart from the question of the sufficiency of the declaration to sustain a recovery of nominal or actual damage the encroachment of the pier may have caused, the plaintiff’s counsel are right in saying that it was a relevant fact, because it would materially aid the jury in determining the proximity and extent of the encroachment upon and obstruction of the road by the other branches of the work incidental to the construction of the bridge, including the excavation for the pier, the erection of the false work and the like.

The next question to be considered is as to the applicability of the rule relative to the immunity of an employer from responsibility for the acts of his independent contractor. The bridge was constructed for the defendant by certain construction companies under written contracts, and the court was requested to charge that under the terms of these contracts the defendant was not responsible for any obstruction of plaintiff’s highway by the contractors during the construction of the bridge, caused by the manner in which they did the work, or, as expressed in another point, for the acts of the contractors in depositing dirt, stone or materials in the right of way claimed by the plaintiff, or for allowing engines or machinery to remain thereon. The refusal of these points is the subject of the sixth and seventh assignments of error. Wherever the contract prescribes the manner in which the work is to be done, or wherever the building or other structure contracted for cannot be erected at the place designated without actionable injury to the property of third persons, the other party to the contract is responsible for the acts of the contractor, thus injurious to others, which compliance with the provisions of the contract renders necessary. The general proposition, which scarcely needs the citation of decisions for its support, has been thus stated: “Where the act which causes the injury is one which the contractor was employed to do and the injury results, not from the manner of doing the work but from the doing of it at all, the employer is liable for the acts of his independent contractor: ” 26 Cyc. of Law & Proc. 1557. The subject is elaborately treated in the notes to Thomas v. Harrington, 72 N. H. 45; s. c., 65 L. R. A. 742. Having regard to sound principle, the saíne rule must be held to apply where the injury results from the doing of the work in the manner expressed in the contract, or directed by the employer or by one acting for him who has authority under the contract to direct it. In First Presbyterian Congregation v. Smith, 163 Pa. 561, Mr. Justice Dean said: “All the authorities cited by appellants, determining the lia bility of an independent contractor, are to the effect that if the power to direct is only as to the results of the work, without any control over the manner of performing it, the liability of the contractor remains. But this contract reserved far larger powers than mere direction as to results; as to many items of the specifications, the right to direct the manner in which the work should be done was retained. In very few of the many specifications, was the method of carrying them out left to the skill and judgment of the contractors. Even the right to discharge incompetent workmen was reserved to the city engineer.” As will be seen later, this description of the nature and extent of the right to control the doing of the work might well have been written for the present case. In the recent case of Sipe v. Penna. R. R. Co., 222 Pa. 400, it was held that in an action against a railroad company to recover damages for the alleged negligent deposit of debris in plaintiff's dam, resulting from the construction of bridges in the stream above the dam, the defendant cannot claim immunity on the ground that the construction of the bridges had been done by an independent contractor, where it appears that the company had accepted the work of the contractor with full knowledge of the condition in which he had left the bed and banks of the stream. While the decision was put upon the ground thus stated, there is the following significant language in the opinion of Mr. Justice Potter relative to the effect of the control retained by the defendant upon the question of its responsibility for the negligence of the contractor : “The negligence consisted in placing the loose material in or near the stream where it would in the natural course of events be washed down by the ordinary flow of the water, aggravated no doubt by floods or high water. In the present instance the work was entered upon and prosecuted by the defendant company under the right of eminent domain, and its agreement with the contractor retained the right of supervision in its own engineer, with power to annul and forfeit the contract at his discretion if the work was not being done to his satisfaction under the plans and specifications of the defendant company. If it were necessary to rest the case upon that point, we would be inclined to hold that the control retained by the defendant company over the manner of performing the work was so close and complete as to render it responsible.” Reynolds v. Braithwaite, 131 Pa. 416, is also a pertinent case. And Washington Natural Gas Co. v. Wilkinson, 1 Sadl. 263; Allen v. Willard, 57 Pa. 374 at p. 381, and Stork v. Philadelphia, 199 Pa. 462, may be appropriately cited. The control retained by the defendant in the contract involved in the present case was very extensive, but before reviewing its provisions in that regard it is worthy of note that owing to its ownership of the land where the alleged injurious acts were committed the defendant had absolute control of it when the contract was made, subject to the plaintiff’s right of way. The contract provided, inter alia, that the right of way and use of such lands as were necessary to enable the contractor to conform to the requirements of the specifications should be furnished for the construction of the railway by the defendant; that the work should be executed under the direction of the defendant’s chief engineer who should designate the portion of the line upon which work should be begun and performed, and should, at all proper times, furnish plans, measurements, stakes and “directions for doing the work;” that the contractor should discharge any foreman or employee who should, in the judgment of the engineer, be unfaithful, unskillful or remiss in the performance of his work; that the chief engineer should have the right to make any alterations that should be determined upon by him as necessary or desirable in the location, line, grade, plan, form or dimensions of the work; that the trestle work, which included all wooden structures, commonly used as substitutes for abutments and piers and for farm passes, etc., should be built according to the plans furnished and directions given by him; that the defendant could suspend or terminate the work for reasons not specified in the contract, without liability to the contractor for consequential damages, or anticipated damages, or damages of any kind resulting from such suspension or termination; that all questions, differences or controversies which should arise between the parties, in any way whatever pertaining to or connected with the work, should be referred to the chief engineer, and his decision should be final and conclusive; that whenever any work embraced in the contract should in any manner interfere with ' a public or private traveled road, the contractor should keep a temporary roadway, during such interference, at all times unobstructed and safe for travel, and any damages which should result from failure so to do might be settled by the chief engineer and held until paid by the contractor. We do not say that the reservation to the employer of the right to discharge the contractor at any time, or of the right to demand the discharge of the contractor’s servants under certain circumstances, will of itself prevent the creation of the relationship of independent contractor; it is, however, an important fact to be considered in connection with others in determining that question, as the above quotations from Pennsylvania cases clearly show. But apart from the reservation to the defendant of these rights, the other provisions to which we have referred reserved to the defendant far larger powers than mere direction as to results; in very many particulars the right to direct the manner in which the work should be done was retained. Not only so, but the evidence adduced by the plaintiff shows that the defendant’s chief engineer was present almost daily giving directions as to the manner of performing the work, and particularly as to the location of the temporary trestle and false work, the excavating, and even in some instances the deposit of materials. His own testimony bears this out. In short, the defendant not only retained the right to control the work in many of its details, but actually exercised control in some, if not all, of the matters from which the injuries complained of arose. It is not necessary in this case to decide the question whether under such a contract as this the principal would be responsible for every trespass or negligent act of the contractor, but certainly for such injurious acts complained of in this case as were performed pursuant to the chief engineer’s direction, and for such unreasonable occupation and obstruction of the plaintiff’s right of way, temporary or permanent, as were necessarily involved in the performance of the contract, the defendant was responsible. It follows that the instructions requested by the defendant in its seventh and eighth points were too broad. The sixth and seventh assignments of error are overruled.

From what has been said it follows also, that the ninth and thirteenth assignments, in which complaint is made of the refusal of the defendant’s point for binding instructions and motion for judgment non obstante, must be overruled. The eighth assignment is dismissed for the reason that it mistakenly alleges the refusal of the defendant’s ninth point, whereas the record shows that the point as modified by its counsel was affirmed.

The admission in evidence of the letter of November 17,1904, would not have helped the defendant’s case except by bringing before the jury the hearsay declaration of the contractor as to the removal of the obstructions and as to the admission of the plaintiff’s tenant, and clearly the defendant was not entitled to have this brought into the case. The tenth assignment is overruled.

The remaining assignments to be considered are the first, second and third. They relate, principally, to the admission of and refusal to strike out evidence offered by the plaintiff to show the pecuniary loss he suffered in consequence of his roadway being so obstructed that he could not get more than one-half of certain crops, principally perishable vegetables, to market, and was compelled to permit them to go to waste. One of the objections urged against the admission of this evidence is that he had access to the highway by another road. But this allegation was disputed by the plaintiff and the question of fact arising upon the evidence was properly submitted to the jury. The other objection is that the evidence would not sustain a finding by the jury that he could not have marketed his entire crops by the exercise of reasonable diligence and therefore evidence of the value of the crops that went to waste was not admissible. We are of opinion that this objection is well taken. In any view of the general subject of the loss of anticipated profits as an element or measure of damages, this seems to be clear, that in the exceptional cases where recovery therefor is allowed, the profits must be susceptible of accurate estimation, they must not be speculative, contingent or uncertain and the loss of such profits must be the proximate result of the wrong: Coyle v. Pittsburg, Bessemer, etc., R. R. Co., 18 Pa. Superior Ct. 235. See also McNeil & Bros. Co. v. Crucible Steel Co., 207 Pa. 493. Another principle to be kept in view is, that it is incumbent in every case upon an injured party to do whatever he reasonably can to lessen the injury: Chamberlin v. Morgan, 68 Pa. 168; Taylor v. Canton Twp., 30 Pa. Superior Ct. 305. He cannot stand idly by and permit the loss to increase, and then hold the wrongdoer liable for the loss which he might have prevented by reasonable exertion, and reasonable expense: 13 Cyc. of Law & Proc. 71. The plaintiff claims that he had but two market days a week; that owing to the distance he could make but one trip on each of these days; and that owing to the narrowing of his roadway at a sharp curve therein by the temporary trestle he was unable to use his large wagon and two horses to haul his vegetables to market. He says: “And by taking a double team, even two horses with a big wagon I could not make the turn without I would strike the other side of the trestle and get stuck, or my horses would get scared and back into the creek and get killed.” He admits, however, that he could and did use a small wagon drawn by one horse and never was prevented from getting out with his load. But he claims that thereby he could haul only about half as large a load as he could if it had been possible to use his large wagon, and as a consequence fully one-half of his crop of vegetables went to waste. If there were nothing further in the case, the obvious answer to this claim would be that if he had used two small wagons he could have marketed his entire crops. The only reason assigned for urging that it is not a complete answer is based on this extract from his testimony: “Q. If you had taken two light wagons you could have gone there? A. I had no two. Q. If you had hired another wagon you could have gone there with all the stuff by making two trips? A. I could not hire none.” There was no evidence that he tried to hire one, or that he had not the means to do so, or that he made any effort to sell the crops he could not haul to another who could haul them. Grant that there is every element of proof necessary to enable the jury to determine with reasonable certainty what profits the plaintiff would have made if he had marketed the crops that went to waste, did he lay sufficient grounds for the introduction of such proof? Viewing his testimony in the light of the legal principles above referred to we are constrained to hold that he did not. So far as the loss of hay is concerned, there is additional reason for holding that its value was not the measure of damages. It did not spoil as a direct consequence of the plaintiff's inability to haul it to market in the year in which it was cut and cured, but because of the leaking roof of the barn in which he stored it.

The first three assignments are sustained.

The judgment is reversed and a venire facias de novo awarded.