Kaufmann Realty Company vs. Jackson et al.

case, was for the jury and not for the Court; and besides that, there is evidence on the part of the plaintiffs that the defendants requested the plaintiffs to confine their attempts to sell, to one customer until a short time before the property was actually sold.

The third contention of the defendants is that the proof does not show that the property was sold or leased under the plan submitted by the plaintiffs to the defendants. Under all the evidence in the case, this was a question for the jury.

We are of opinion, therefore, that, giving full effect to all the testimony and the inferences which might be drawn from it, the case was one for the jury, and therefore, the defendants are not entitled to judgment on the whole record.

The motion is therefore refused.

Markovitz vs. Fire Association of Philadelphia.

Pleading and Practice-Motion for Judgment N. O. V.Proper Reason, Questions of Fact-New Trial-Remittitur.

Where in an action to recover on a fire insurance policy, the defense was that the plaintiff was guilty of fraud in procuring the policy and in furnishing proofs of loss and that the property was unoccupied for more than ten days, the jury returned a verdict in favor of the plaintiff for the full amount of the policy, these are not proper reasons for a motion for judgment, non obstante veredicto, as being questions of fact, they are for the jury.

On a motion for a new trial on the ground that the verdict was excessive in a suit on a fire insurance policy, the court, where the undisputed testimony is that the buildings were of less value than the amount recovered, will make an order permitting plaintiff to file a remittitur for the amount of the verdict in excess a sum certain, otherwise a new trial will be granted.

Motion for New Trial and Judgment N. O. V. No. 2056 April Term, 1915. C. P. Allegheny County.

Elias Sunstein, for plaintiff.

Mehard, Scully & Mehard, for defendant.

HAYMAKER, J., April 4, 1916.-This is an action on a fire insurance policy to recover $1,700 with interest. The insured property consisted of a twostory frame dwelling house, insured for $1,200, and a barn insured for $500, located on a farm in Taylor Township, Center County, Penna. The policy was taken out January 24, 1913, and the fire occurred August 12, 1914, resulting in a total destruction of both buildings.

The defendant denied liability on three grounds: (a) that the policy was procured by fraud; (b) that the plaintiff was guilty of fraud in the proofs of loss; and (c) that there was a vacancy or unoccupancy of the insured property for more than ten days, resulting in a forfeiture of the policy.

The main contention of the defendant, on the trial, was that the policy became forfeited by reason of the vacancy or unoccupancy of the insured premises for more than ten days. The trial resulted in a verdict for plaintiff for $1,827.50. We could not affirm defendant's point that under the pleadings and all the evidence the verdict of the jury must be for the defendant, for the reason that every question raised was one of fact that could be determined only by the jury; and for the same reason we cannot now enter judgment for the defendant non obstante veredicto. We do not consider the other reasons assigned proper on a motion for judgment non obstante veredicto.

Markovitz vs. Fire Association of Philadelphia.

On the motion for a new trial the only reason assigned that calls for serious consideration is that the verdict was grossly excessive. The testimony of the plaintiff, a resident of Homestead, fixing the value of the house and barn respectively, before the fire at $2,000 and $3,000, was out of all reason. The evidence of plaintiff's witness, Mr. Cramer, was limited to an estimate of from $1,600 to $1,800 on the house. This witness was a carpenter and builder, residing in Homestead, who obtained his knowledge from a visit to the plaintiff's farm. There was nothing in his evidence to show any familiarity with the value of farm buildings generally, to say nothing of their values in the county in which they were located. He did testify that the house was not in good condition and that some of the windows and doors were out. G. W. Walk, a witness called by the plaintiff, who resided in the vicinity of the insured buildings, placed a valuation of $1,200 on the barn and $2,000 on the house. This witness accompanied the plaintiff at the time he procured his policy, and confirmed plaintiff's statement to the agent of the defendant company that the property was then "in good physical and insurable condition." Some four witnesses residing near the property, called by the defense, fixed the aggregate value of the buildings at various sums ranging from $350 to $600. The undisputed evidence is that the buildings were about a half century old. The roof of the barn in places, had been off many years, and the floor and timbers generally rotted. The house some few years before the fire was covered with a tar roof, and had not been regularly occupied for farming purposes for many years, but was in the occupancy generally of persons engaged in cutting the timber from the farm. The evidence shows that the barn was practically useless, from age and decay, that the house was in a dilapidated condition, and that neither possessed anything like the value given by the plaintiff and his witnesses.

If the plaintiff, within ten days, files a remittitur for the amount of the verdict in excess of $900 the motions for judgment n. o. v. and for a new trial will be overruled; otherwise a new trial will be granted.

In re Railways on Public Highways.

Highways-Street Railway Tracks-Grade Established by State Highways Department-Narrowing Public Roads.

Any act on the part of the supervisors of a township which tends to narrow a public road, or to render its use for its entire width by the public dangerous or impossible is ultra vires.

A street railway, which occupies a state highway with its tracks, may be compelled by the State Highways Department at any time to place its tracks at the grade established by that department, and if it fails to do so, the railway company can be indicted; and for its abuse of its powers and usurpation of public rights an action of quo warranto would lie against it. To make it conform to the lawful conditions under which it took a portion of the public road for its tracks, a suit in equity may be maintained against it.

OFFICE OF THE ATTORNEY GENERAL
Harrisburg, Pa.

Honorable Robert J. Cunningham,

Sir:

State Highway Commissioner,
Harrisburg, Pa.

January 6th, 1916.

This Department is in receipt of your communication of December 23, 1915. The matter which you present is that of a street railway company occupying a road which is now a part of the State Highway System. It appears that this company occupies the road under the grant of township supervisors and the nature of its occupancy is such that the road has been narrowed so that the part opened and in use by the public is less than that to which the road was originally opened. You also state that the street railway company, in occupying this road, maintain their tracks above the level of the roadway, so that that portion of the road occupied by it cannot be used and traveled over with safety by the public.

It further appears that certain conditions imposed by the supervisors in their original grant have been left unperformed by the street car company; in some instances on their claiming releases from such conditions and in other instances on the grounds of the impossibility of their performance.

Your inquiry is as to the rights of a street railway company so occupying the public road, and the remedies available to the Commonwealth where such cccupancy narrows the road or otherwise amounts to a public nuisance.

The legal aspect presented is not so much that of the rights of this company and the Township, but the Company and the Commonwealth. It is Hernbook law that in this state local political divisions, whether municipal or quasimunicipal, held their streets and roads merely as public trustees, not for the citizens only, but for all the inhabitants of the Commonwealth. Except in so far as constitutional limitations prohibit, the Legislature may, therefore, modify, abridge or enlarge their use without the consent, or even against the will of such divisions.

City of Harrisburg vs. Railway Company, 1 Pearson, 298.

By the Act of May 14, 1889, which is merely a re-enactment of the constitutional provision of 1874, no street railway may locate its tracks upon any street or road without the consent of the local authorities. The right of local authorities to grant such permission is different in the case of townships than that of boroughs or cities. In the latter the municipal corporations has, aside from the rights of the Commonwealth, almost exclusive jurisdiction over its streets. They may extend or abridge them, widen or narrow them, and any property owner injured may look only to such municipality. In townships, however, while the supervisors or other township officers are the local authorities referred to in the Constitution of 1874, and Act of 1889, yet they do not have the control possessed by municipalities, as stated by Mr. Justice Williams in Pennsylvania Railroad Company vs. Montgomery County Passenger Railway, 167 Pa., 72:

In re Railways on Public Highways.

"Cities and boroughs possss the necessary power over their streets to enable them to authorize their use by a street railway. Townships do not possess municipal powers, and under existing laws their control over the public roads is limited."

Township supervisors can lay out, abandon, or alter township roads only under the direction of the Court of Quarter Sessions, and not under their own discretion or initiative. When a road is once established, whether it has in the first instance been one laid out under the order of the Court, or is a prescriptive road covered by the Act of April 21, 1846, P. L. 416, the rights and powers of Supervisors in themselves to alter its width, length or location, have been repeatedly denied by the Courts of this state.

As stated in McMurtie vs. Stewart, 21 Pa. State, 322:

"When the order to open is executed by the supervisors, the whole width of it is to be taken as devoted to the public use, and though it may not at first be entirely cleared out, that may be done afterwards. When a track has once been made on which the public can pass, the power to make another location is gone."

Again, in Furniss vs. Furniss, 29 Pa., 15, it is held:

"No agreement between supervisors and owners of land through which a public road passes can give validity to a change of the route of such road differing from that reported by the viewers. The authority under the order to open a road is exhausted by the action of those to whom it is directed."

The foregoing cases are cited in support of the position which we take, namely, that the Supervisors were without power to enter into any valid agreement, which in its effect narrowed or limited the portion of this road which could be used by the public.

Any political subdivision, that is townships, boroughs or cities, when granting permission to street railways to occupy their roads or streets, may impose such conditions as they see fit.

Allegheny vs. Street Railway Company, 159 Pa., 411.

As stated in Plymouth Township vs. Chestnut Hill and Norristown Railway, 168 Pa., 181:

"The railway company must take such consent upon such conditions as the local authorities may impose, or not at all."

In the present case the consent in the first instance was given on condition that, with the exception of a small portion of the road, there was to be a sixteen-foot clear roadway, and in addition the company was to take care of all slides, and to keep the drains open at all times. The company has maintained a position that aside from the agreements these conditions were impossible of fulfillment, particularly as to the width of roadway. Their attitude is that in maintaining it to the designated width they would be compelled to retain dangerous curves, and keep the track in dangerous proximity to the west bank. This contention is disposed of in the case of Commonwealth vs. Erie and North-East Railroad Company, 27 Pa., 355, in which the Court says:

"If the powers given to the corporators cannot be executed without disregarding the restrictions with which they are coupled, they cannot be executed at all. A prohibition, exception, or reservation in a charter, must therefore stand in full force, though it destroy or make nugatory all the powers given to the company."

Again

"Municipal consent to the occupation of the streets of a municipality by a railroad company upon condition, and the condition broken, is no consent at all." See also: Millcreek Township vs. Erie Rapid Transit Company, 216 Pa., 132. By the subsequent agreements entered into the Supervisors attempted to give away public rights, and the company, consistent with its uniform course, attempted to free itself of its obligations. The duty of this company to maintain

In re Railways on Public Highways.

the whole of the road, including the portions occupied by its tracks, fit for public travel is discussed later. Such duty, however, under the common law and its franchise, is no less than the duties discussed in the case of Snow et al. vs. Deerfield Township, 78 Pa., 181. In that case a railroad which constructed its tracks on a public road was obligated under the Act of February 18, 1849, to construct a new road. The township authorities attempted to release the railroad company from this obligation in consideration of the payment of a sum of money to the township. The Court in discussing the case says:

"It was an agreement by the township wholly to release the railroad company from all responsibility and liability for the construction and repair of this and all other roads made necessary by the obstructions, or occupancy, or injury caused by the building of the railroad, and to perform this duty on the part of the township. Now, clearly this was a contract beyond the scope of the powers of the commissioners who made the agreement on behalf of the township. They could not release the railroad company from its public duty and its liability to the public for neglect or nonperformance of the duty. The whole contract was ultra vires, and compelled the township to assume a liability to the public which was specially imposed by law upon the railroad company."

Aside from all duties imposed on this street railway company in its franchise to maintain its tracks in condition so that the public might use them, and to preserve the width and condition of the balance of the road, it has long been recognized as the common law in this state that such duty is inseparable from the use of a public highway.

The whole attitude of this company has been one of indifference to the effect which the presence of their railway has on the balance of the road. As stated in Commonwealth vs Erie and North-East Railroad Company, supra:

"If, for instance, the railroad be made above the level of the street, they must grade the rest of the street also, if that will make it better for public accommodation. They cannot say to the city authorities, We have destroyed your street, and rendered it impassable; but we have not impeded its free use, because you can restore it again to a tolerable condition, at your own expense. Neither does it make any difference whether it be a main thoroughfare or an unimportant by-street, for this act of incorporation protects all alike."

The portion of the act referred to read as follows:

"The said railroad shall be so constructed as not to obstruct or impede the free use of any public road, street, lane or bridge, now laid out, opened or built."

The requirement in that act was no greater than the common law duty upon street railway companies to preserve the streets they occupy in fit condition for public use.

In the case of Reading vs. United Traction Company, 215 Pa., 250, the rule is stated:

"The municipality, as the agent of the state, has charge of the streets, that it must maintain and keep them in proper repair, and when the state permits this charge, as to a portion of a street, to be committed to another, it must be understood as imposing upon such party the responsibility that formerly rested upon the municipality, unless in the grant, or in the municipal consent thereto, of the right to use a portion of the street, such responsibility is expressly withheld and its imposition continued upon the municipality."

It will be noted here, that to relieve a street railway company from this duty it must be expressly stated in the grant.

Again in the same case:

"It is recognized with substantial uniformity, that a railway company, whether general or passenger, is bound to keep the portions of streets occupied by its right of way in good condition, even in the absence of any express contract or statutory direction to that effect."