The opinion of the court was delivered, January 3d 1870, by
Sharswood, J. —
The first twelve assignments of error all depend upon one question, whether the defendants below were responsible in damages to the plaintiff for the injury which he sustained in consequence of the admitted insufficiency of the bridge over their canal, without some evidence of actual or wilful negligence on their part.
It has been argued that the defendants are not liable to the plaintiff at all, because they owed him no duty. Their charter, by the terms of which they were “to build and keep in good repair suitable and convenient bridges over the canal,” it is contended, was a contract with the state, who, alone, can take advantage of its violation. There was no privity, therefore, in the plaintiff. But even regarding it in that light, for whose use and benefit did the Commonwealth exact this engagement from the corporation, as one of the terms and conditions upon which the franchise was granted ? This particular clause was evidently for the benefit of all persons travelling upon the public highways. If A. contracts with B. to do a certain thing for the benefit of C., and does it so badly that C. is injured by his misfeasance, C. could not perhaps sue directly on the contract, but non constat that he could not maintain an action on the case, on the principle that it was a breach of duty to him, though springing from a contract with another. If, as the argument seems to admit, the [296]*296Commonwealth, could sue for the use of the plaintiff, there is no reason why he may not maintain an action in his own name.
But it is not necessary to rely on this line of reasoning. The charter is, indeed, a contract; but it is also a law imposing upon the defendants, as a corporation, the burden of performing a certain duty to the public. If that duty to the public has not been performed, they become thereby responsible to all persons who may suffer any special injury in consequence of it. Upon the same principle, which has been settled law from the Year-Books downward, if a party has sustained any special damage from a public nuisance beyond that which affects the public at large, whether it be direct or consequential, an action will lie against the author of the nuisance, for redress. If the defendants, although under the authority of their charter, built a bridge over their canal, which either originally was rotten and unsafe, or became so subsequently, it was a public nuisance in the highway, and the plaintiff, having suffered a direct, special injury, was entitled to recover of them the damages: Wilkes v. Hungerford Market Company, 2 Bingh. N. C. 281; Hughes v. Heiser, 1 Binn. 463; Pittsburgh v. Scott, 1 Barr 309; Commissioners v. Wood, 10 Id. 93; Baxter v. Winooski Turnpike Company, 22 Verm. 122.
In Manley v. St. Helen’s Canal and Railway Company, 2 Hurls. & Norm. 840, the defendants had, by Act of Parliament, the right to construct a canal and take tolls thereon; and had built the same across an ancient highway, having made a swivel bridge across the canal for the passage of the highway. A boatman having opened the swivel bridge to allow his boat to pass through in the night time, a person walking along the road fell into the canal and was drowned. It was held that the defendants, having a beneficial interest in the tolls, were liable to an action, the same as any owner of private property would be, for a nuisance arising therefrom. . “It has been urged,” said Pollock, C. B., “ that what was done by this Canal Company was done by them under the authority of an Act of Parliament, passed many years ago, and with the same responsibility as attaches to the trustees of a highway, or other persons, acting in the performance of functions intrusted to them by statute. I do not think that argument can prevail. The owners of this canal were to be looked on as a trading company, who, though the legislature permits them to do various acts described in the statute, are to be considered as persons doing them for their own private advantage, and are, therefore, personally responsible if mischief ensues from their not doing all they ought, or doing, in an improper manner, what they are allowed to do.” In The Cumberland Valley Railroad Company v. Hughes, 1 Jones 140, in the case of a railway company, it was held to be their duty to keep the road in sufficient repair. It is a condition attendant upon a grant of the privilege to con[297]*297struct a public road or highway for profit, which from its very nature, enures to the benefit of all who may have occasion to use the thoroughfare. In The Schuylkill Navigation Company v. McDonough, 9 Casey 73, it was decided that the remedies against a canal company, provided by their act of incorporation, for injuries arising from the construction of the works, do not exclude the common-law remedies for injuries arising from an abuse of their privileges, or for the neglect of their duties, and that they are, therefore, liable for injuries sustained by a riparian owner in consequence of an overflow of water, caused by the pool of their dam being filled up by dirt, without regard to the question by whose act such filling up was occasioned. In Pittsburg City v. Grier, 10 Harris 54, it was held that a city, being in possession of a public wharf within its limits, exercising exclusive supervision and control over it, and receiving tolls for its use, is bound to keep it in proper condition and is liable for special injury sustained by an individual in consequence of its neglect to keep the wharf in order. So in Erie City v. Schwingle, 10 Harris 384, the doctrine was laid down expressly that a corporation, which is bound by its charter to keep the streets in repair, is liable for an injury occasioned by its neglect to do so, and it is not material whether the neglect was wilful or otherwise. “Except,” says Black, C. J., “ in cases where the suit is against a public officer in his individual character and not against the corporation which he represents, as in Bartlett v. Crozier, 15 Johns. 250, it makes no difference whether the neglect is wilful or otherwise.” In like manner in Yale v. The Hampden and Berkshire Turnpike Company, 18 Pick. 357, where a statute provided that a turnpike corporation “ shall be liable to pay all damages which may happen to any person from whom toll is demandable, for any damage sustained by a traveller in consequence of a defect in the road,” the Supreme Court of Massachusetts was of opinion, and so ruled, that by this act it was intended to provide that whenever the traveller himself is not chargeable with negligence or rashness, but when from an unforeseen cause, the road is actually defective and in want of repair, and an accident occurs without the default of either party, the company should be held liable. It is founded on the consideration that the toll is an adequate compensation for the risk assumed, and that by throwing the risk upon those who have the best means of taking precautions against it, the public will have the greatest security against actual damage and loss.
From these cases it may be deduced that, where a corporation, in consideration of the franchise granted to it, is bound by its charter to keep a road or bridge in repair, it is liable for any injury to a person, arising from want of repair, whether the defect be patent or latent, unless he be in default, or unless the defect arose from inevitable accident, tempest or lightning, or the wrong[298]*298ful act of some third person, of which they had no notice or knowledge.
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The opinion of the court was delivered, January 3d 1870, by
Sharswood, J. —
The first twelve assignments of error all depend upon one question, whether the defendants below were responsible in damages to the plaintiff for the injury which he sustained in consequence of the admitted insufficiency of the bridge over their canal, without some evidence of actual or wilful negligence on their part.
It has been argued that the defendants are not liable to the plaintiff at all, because they owed him no duty. Their charter, by the terms of which they were “to build and keep in good repair suitable and convenient bridges over the canal,” it is contended, was a contract with the state, who, alone, can take advantage of its violation. There was no privity, therefore, in the plaintiff. But even regarding it in that light, for whose use and benefit did the Commonwealth exact this engagement from the corporation, as one of the terms and conditions upon which the franchise was granted ? This particular clause was evidently for the benefit of all persons travelling upon the public highways. If A. contracts with B. to do a certain thing for the benefit of C., and does it so badly that C. is injured by his misfeasance, C. could not perhaps sue directly on the contract, but non constat that he could not maintain an action on the case, on the principle that it was a breach of duty to him, though springing from a contract with another. If, as the argument seems to admit, the [296]*296Commonwealth, could sue for the use of the plaintiff, there is no reason why he may not maintain an action in his own name.
But it is not necessary to rely on this line of reasoning. The charter is, indeed, a contract; but it is also a law imposing upon the defendants, as a corporation, the burden of performing a certain duty to the public. If that duty to the public has not been performed, they become thereby responsible to all persons who may suffer any special injury in consequence of it. Upon the same principle, which has been settled law from the Year-Books downward, if a party has sustained any special damage from a public nuisance beyond that which affects the public at large, whether it be direct or consequential, an action will lie against the author of the nuisance, for redress. If the defendants, although under the authority of their charter, built a bridge over their canal, which either originally was rotten and unsafe, or became so subsequently, it was a public nuisance in the highway, and the plaintiff, having suffered a direct, special injury, was entitled to recover of them the damages: Wilkes v. Hungerford Market Company, 2 Bingh. N. C. 281; Hughes v. Heiser, 1 Binn. 463; Pittsburgh v. Scott, 1 Barr 309; Commissioners v. Wood, 10 Id. 93; Baxter v. Winooski Turnpike Company, 22 Verm. 122.
In Manley v. St. Helen’s Canal and Railway Company, 2 Hurls. & Norm. 840, the defendants had, by Act of Parliament, the right to construct a canal and take tolls thereon; and had built the same across an ancient highway, having made a swivel bridge across the canal for the passage of the highway. A boatman having opened the swivel bridge to allow his boat to pass through in the night time, a person walking along the road fell into the canal and was drowned. It was held that the defendants, having a beneficial interest in the tolls, were liable to an action, the same as any owner of private property would be, for a nuisance arising therefrom. . “It has been urged,” said Pollock, C. B., “ that what was done by this Canal Company was done by them under the authority of an Act of Parliament, passed many years ago, and with the same responsibility as attaches to the trustees of a highway, or other persons, acting in the performance of functions intrusted to them by statute. I do not think that argument can prevail. The owners of this canal were to be looked on as a trading company, who, though the legislature permits them to do various acts described in the statute, are to be considered as persons doing them for their own private advantage, and are, therefore, personally responsible if mischief ensues from their not doing all they ought, or doing, in an improper manner, what they are allowed to do.” In The Cumberland Valley Railroad Company v. Hughes, 1 Jones 140, in the case of a railway company, it was held to be their duty to keep the road in sufficient repair. It is a condition attendant upon a grant of the privilege to con[297]*297struct a public road or highway for profit, which from its very nature, enures to the benefit of all who may have occasion to use the thoroughfare. In The Schuylkill Navigation Company v. McDonough, 9 Casey 73, it was decided that the remedies against a canal company, provided by their act of incorporation, for injuries arising from the construction of the works, do not exclude the common-law remedies for injuries arising from an abuse of their privileges, or for the neglect of their duties, and that they are, therefore, liable for injuries sustained by a riparian owner in consequence of an overflow of water, caused by the pool of their dam being filled up by dirt, without regard to the question by whose act such filling up was occasioned. In Pittsburg City v. Grier, 10 Harris 54, it was held that a city, being in possession of a public wharf within its limits, exercising exclusive supervision and control over it, and receiving tolls for its use, is bound to keep it in proper condition and is liable for special injury sustained by an individual in consequence of its neglect to keep the wharf in order. So in Erie City v. Schwingle, 10 Harris 384, the doctrine was laid down expressly that a corporation, which is bound by its charter to keep the streets in repair, is liable for an injury occasioned by its neglect to do so, and it is not material whether the neglect was wilful or otherwise. “Except,” says Black, C. J., “ in cases where the suit is against a public officer in his individual character and not against the corporation which he represents, as in Bartlett v. Crozier, 15 Johns. 250, it makes no difference whether the neglect is wilful or otherwise.” In like manner in Yale v. The Hampden and Berkshire Turnpike Company, 18 Pick. 357, where a statute provided that a turnpike corporation “ shall be liable to pay all damages which may happen to any person from whom toll is demandable, for any damage sustained by a traveller in consequence of a defect in the road,” the Supreme Court of Massachusetts was of opinion, and so ruled, that by this act it was intended to provide that whenever the traveller himself is not chargeable with negligence or rashness, but when from an unforeseen cause, the road is actually defective and in want of repair, and an accident occurs without the default of either party, the company should be held liable. It is founded on the consideration that the toll is an adequate compensation for the risk assumed, and that by throwing the risk upon those who have the best means of taking precautions against it, the public will have the greatest security against actual damage and loss.
From these cases it may be deduced that, where a corporation, in consideration of the franchise granted to it, is bound by its charter to keep a road or bridge in repair, it is liable for any injury to a person, arising from want of repair, whether the defect be patent or latent, unless he be in default, or unless the defect arose from inevitable accident, tempest or lightning, or the wrong[298]*298ful act of some third person, of which they had no notice or knowledge. It matters not that ordinary care was used in the erection or repair of it, and that' such work was done under contract by competent workmen. The principle of Painter v. The Mayor of Pittsburg, 10 Wright 213, has no application. That was an action for an injury sustained by the plaintiff, from the negligence of the contractors of the defendants, while engaged in the actual construction of a sewer. Had the plaintiff, in this case, fallen into the canal in consequence of the negligence of the contractors employed by the defendants, while actually employed either in the construction or repair of this bridge, the case presented would have been entirely different.
It is supposed that Oakland Railway Company v. Fielding, 12 Wright 320, is inconsistent with this view. But it is to be remarked that the injury arose, in that case, from a hole in the road made by third persons. “ If, then,” said the learned judge below, “ the defendants had notice of the hole — if they knew that it rendered the street unfit and dangerous for public travel, and if they knowingly suffered it to remain in that condition without an effort to repair it, they were guilty of negligence.” It is evident, then, that the case was rested upon an entirely distinct and independent ground, which does not touch the principle established in the other cases cited. It may be safely admitted that if a third person had wantonly or maliciously cut away part of the timbers of this bridge, in consequence of which it had fallen, the defendants would not be liable, unless notice or knowledge of the defect and neglect to repair it were brought home to them.
It is proper to notice the case of Monongahela Bridge Company v. Kirk, 10 Wright 112, which has been much relied on as showing that a clause in the charter of a bridge company that the bridge should not be erected “ in such a manner as to injure, stop or interrupt the navigation of the river by boats, rafts or other vessels,” is a limitation of the franchise only, and not a rule of liability to injured navigators. Although this is said in the opinion, it must be considered in its application to that particular case, and not as the statement of a general principle. The injury there arose from the erection of piers, which the company were authorized by their charter to build, and for consequential damages for an act within the authority conferred upon them, they wTere not responsible, as wras held in The Monongahela Navigation Co. v. Coon, 6 Barr 382, and many other cases. “ Surely,” says Read, J., “ it cannot be maintained that the proviso in the company’s charter is a declaration that they shall pay damages to any one injured. It is clear, therefore, that the defendants are not liable in this action unless the bridge be an unauthorized erection, and consequently a nuisance. That it is not has been sufficiently shown.”
[299]*299On the whole, then, we are of the opinion that the answers of the learned judge to the several points which form the subjects of the first twelve specifications of error were correct.
It remains to consider the 13th assignment, that the court erred in receiving the testimony of Drs. Kirker and Woodbridge relating to the pain and suffering of the plaintiff from the injuries received by his fall. Damages, which necessarily result from the act complained of, are properly termed general damages, and may be shown under the common allegation, ad damnum. Injuries to the person consist in the pain suffered, bodily and mental, and in the expenses and loss of, property they occasion. In estimating damages, the jury may consider not only the direct expenses incurred by the plaintiff, but the loss of his time, the bodily suffering endured, and any incurable hurt inflicted, for these may be classed among necessary results: Laing v. Colder, 8 Barr 479; Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339. There was no error, therefore, in the admission of this evidence.
Judgment affirmed.