Whitmire v. Township of Muncy Creek

17 Pa. Super. 399, 1901 Pa. Super. LEXIS 326

• Court: Superior Court of Pennsylvania
• Decided: July 25, 1901
• Docket: Appeal, No. 1
• Status: Published

Opinion

Opinion by

Rice, P. J.,

1. The bridge in question was built by the county of Lycoming about the year 1844, and is located entirely in the township of Muncy Creek, the defendant. The first question to be noticed is, whether the duty of making such ordinary repairs as were necessaiy to keep it fit for use rested upon the township or the county. Prior to the Act of April 13,1843, P. L. 221, this duty was imposed by the general law of the commonwealth upon townships. “When a county bridge has been once legally built, such ordinary repairs as are necessary to preserve it fit for use are to be made by the supervisors of the township, as in the case of roads: ” Commonwealth v. Monroe County, 2 W. & S. 495. Speaking of the act of 1836 and previous legislation, Mr. Justice Williams said: “ But the law does not make provision for its ” (a county bridge) “ care after its erection. The duty remains on the township, and the finished bridge, when opened for travel, becomes a part of the highway and passes as such under the care of the township officers. The county has no road officers. Its duty is simply to build the bridge, when the township cannot; and, that duty done, it has no further responsibility for its maintenance than for the maintenance of the roadway leading to or from it: ” Erie County v. Commonwealth, 127 Pa. 197. Further on in his opinion Justice Williams said: “ The case of Howe v. Crawford County, 47 Pa. 361, on the authority of which the learned judge of the court below ruled this case is in conflict with The Commonwealth v. Monroe County, supra, and with the rule now laid down.” See also Francis v. Franklin Twp., 179 Pa. 195.

The general law of the commonwealth relating to the ordinary repairs of bridges as declared in Commonwealth y. Monroe, supra, remained undisturbed by legislation until the passage of the act of 1848, which provided: “ That from and after the passage of this act it shall be the duty of the county commissioners of the several counties of this commonwealth to repair all bridges erected by the county and to pay the expenses of such repairs out of the county treasury in the usual manner, except” in certain counties, among which was Washington. By the 2d section of the Act of April 26, 1850, P. L. 615, 616, the provisions of the act of 1843 were extended to the county of Washington, which, as has been seen, was excepted out of the latter act. It thereupon became the duty of the county commissioners of Washington to keep in repair all bridges erected by the county. But by the Act of March 30,1859, P. L. 309, entitled “An act relating to roads and bridges in Washington county,” which was extended to the county of Lycoming by the Act of March 12,1860, P. L. 144, it was provided in the 6th section as follows: “ That it shall be the duty of the supervisors of the several townships, and the street commissioner, or other persons having charge of the highways in incorporated boroughs, to keep in repair all bridges built, or that may hereafter be built, by the county commissioners, at the charge of the county, and they shall be subject to the like penalties for neglect as they are now liable to in the case of roads and bridges built at the expense of the township or borough.” ^ 3

Two constructions of the foregoing section have been pressed upon our consideration. One makes the words “ at the charge of the county ” qualify the words “ keep in repair,” thus making the township supervisors agents of the county. The other makes them qualify the word “built,” thus leaving the law, as to the duty of the townships to make ordinary repairs of bridges built by the county, as it stood prior to the act of 1843. Before adopting any proposed construction of a passage susceptible of more than one meaning it is important to consider the effects or consequences which would result from it for they often point out the general meaning of the words. This is elementary law. Another familiar principle to be kept in view is that several acts in pari materia, and relating to the same subjectare to be taken together and compared, in the construction of them, because they are considered as having one object in view and as acting upon one system: 1 Kent’s Comm. 463. Growing out of these rules is the presumption that the legislature does not intend to make any alteration in the law beyond what it explicitly declares either in express terms or by unmistakable implication; in other words, beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed: Endlich on Intefpretation of Statutes, sec. 113. These general principles are applicable here. The 4th section of the Act of April 15, 1834, P. L. 538, declares : “ The corporate powers of the several counties and townships shall be exercised by the commissioners or supervisors thereof, respectively.” lit view of this general policy of the state it may well be questioned, whether, in the enactment of the local law under consideration, the legislature intended to set it aside by conferring the powers and imposing the duty to repair bridges upon the county — thus making it a county affair — but at the same time making the township supervisors the agents of the county for the exercise of this power and the performance of the duty in their respective townships. If the ' language of the section left the meaning of the legislature in doubt we would be inclined to the opinion that this consideration, alone, would resolve the doubt ■ against such interpretation. But does not the succeeding section remove all doubt as to the intention of the legislature ? It reads as follows: “ It shall be° the duty of the county commissioners, upon representation being made to them that any bridge built by the county has been damaged or destroyed by flood or other casualty, or by natural decay become unsafe, so as to be too heavy an ex pense for the township to repair or rebuild, to make an examination of the same; and if they are- then satisfied such is the case, to proceed to repair or rebuild the same, as to them shall appear best, as in'the case of new bridges.” This express grant of power to county commissioners to repair bridges under special circumstances is entirely inconsistent with the assumption that the duty of making all repairs rests upon the county. Construing the two sections together we think the true conclusion maybe stated as follows: The statute prescribes the prerequisites to the exercise of this- power by the county commissioners and withoutthem.no duty devolves upon the county: Rigony v. Schuylkill Co., 103 Pa. 382. Where these prerequisites exist, that is, where representation has been made to them that a bridge needs repairs, the expense of which would be too heavy for the township to bear, and after due investigation they are satisfied, and so determine, that such is the case, the power becomes a duty. This implies an investigation by them of each case as it arises, not the adoption of a general policy relative to the repair of all bridges built by the county. Where these prerequisites do not exist, such repairs as were required in the present instance are to be made by the supervisors, as township officers, and for the performance of this duty they have the same powers as in the case of the highway, of which the bridge forms a part. It is hardly necessary to say, that the personal liability of the supervisors for their neglect to perform this duty does not lessen the primary liability of the township to those who suffer injury from their neglect. Upon that point we need only refer to the case of Rapho v. Moore, 68 Pa. 404. It follows that there was error in holding that “ there was no duty devolving upon the township defendant to keep said bridge in repair, and therefore the defendant is not liable in this action.”

2. It is urged, in the second place, that the cause of the accident was a defect in the original construction of the bridge, and therefore the township was not liable. In support of this legal proposition counsel cite Rigony v. Schuykill Co., supra. The accident was caused by the breaking of a floor beam upon which the ties or joists, upon which the planks were laid, rested. This floor beam had been in place between fifty and sixty years, and according to the testimony of several supervisors had not been examined to their knowledge.' One of them said: “ I did not; I took it for granted it was all right.” This seems to have been true of the other officers. The evidence tended to show that the breaking of the timber was due to natural decay. This may have been hastened by reason of the mortising of the timber, but as the bridge as thus constructed had stood for over fifty years the court would not have been warranted in declaring that the mortising of the timber was the proximate cause of the accident. The township’s officers were bound to know, and presumably did know, the manner in which the bridge was constructed, and to grade their care according to the circumstances. If with such knowledge they omitted inspection or replacement of the timber when they ought to have known that in the ordinary course of nature it was weakened by decay,' a.jury would have been warranted in finding that the proximate cause of the accident was their neglect to repair.

3. Another point urged by the defendant is, that the decay of the timber was a latent defect, and there could be no recovery without proof of express notice. The rule as to the responsibility for latent defects does not apply if inspection was a duty, and upon proper inspection the defect would have been discovered. When a bridge has stood for the time timbers are expected to last, and it may be reasonably expected that decay has set in, it is negligence to omit all proper precautions to ascertain its condition. In such case appearances will not excuse the neglect, but it is their duty to call to their assistance those whose skill will enable them to ascertain the state of the structure, or, at least, to apply such ordinary tests as will give them the required information : Rapho v. Moore, supra; Ford v. Roulet Township, 9 Pa. Superior Ct. 643. It is unnecessary to cite other cases. ' It would have been flagrant error for the ■ court to declare as matter of law that the supervisors had done their whole duty.

4. The last point suggested by the defendant is that the plaintiff was guilty of contributory negligence in propelling a traction engine and steam thresher across the bridge without previous examination of its condition. But according to the testimony, steam threshers of the same description were in common use in that part of the country and had been for several years. His was of medium weight. The court could not have declared as a matter of law that the moving of traction engines for steam threshing and other purposes was at that time and in that neighborhood an extraordinary or unlawful use of the highway: Coulter v. Pine Twp., 164 Pa. 543. Whether he used due care and whether, in view of this common use of the highways and bridges, the supervisors were negligent in not replacing the decayed timbers, were questions whieh the plaintiff was entitled to have submitted to the jury with appropriate instructions.

Judgment reversed and venire facias de novo awarded.