Opinion
November 29, 1945.
January 7, 1946.
Negligence — Highways — Location and construction — Public Service Commission — Approval — Effect.
A person is not subject to liability for alleged negligence consisting of participating in the relocation and construction of a public highway where both the relocation and construction were approved by the Public Service Commission which had exclusive jurisdiction over such relocation.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeals, Nos. 144 and 145, March T., 1945, from judgment of C. P., Allegheny Co., Jan. T., 1944, No. 2466, in case of Jeanne C. Slivka, Admrx., et al. v. Stanley Ference et al. Judgment affirmed.
Trespass for wrongful death.
The facts are stated in the opinion, by SMART, J., of the court below, DITHRICH, SOFFEL and SMART, JJ., as follows:
These cases are before the court for disposition on affidavits of defense raising questions of law filed on behalf of The Pittsburgh Lake Erie Railroad Company.
In all cases except the Hair case the railroad company was summoned as an additional defendant. In the Hair case it was sued as an original defendant.
The statements of claim in these cases were filed by parties injured or by representatives of persons killed in an accident which occurred on December 22, 1942, on Constitution Avenue, formerly Station Street, also known as State Highway Route 930, in the Borough of Aliquippa, Beaver County, Pennsylvania.
The original defendants named by the respective plaintiffs are certain partners trading as Ohio River Motor Coach Company (a common carrier), Jones Laughlin Steel Corporation, and Woodlawn Land Company. In the Hair case the same parties are named as defendants and, in addition thereto, The Pittsburgh Lake Erie Railroad Company. In each of the cases defendants, Jones Laughlin Steel Corporation and Woodlawn Land Company, filed separate affidavits of defense and also filed separate statements of claim and complaints summoning The Pittsburgh Lake Erie Railroad Company as an additional defendant. To these last-mentioned pleadings the railroad company filed affidavits of defense raising questions of law. In the Hair case it filed a similar affidavit of defense raising questions of law in response to the plaintiff's statement of claim.
The several statements of claim allege that a bus of the motor coach company was proceeding along State Highway Route 930 on December 22, 1942; that the bus was crushed by a landslide, thereby causing the death or the injury of the plaintiff or the plaintiff's decedent, as the case might be; that the landslide came from a slope owned by defendant, Woodlawn Land Company, whose dominating corporate parent is defendant, Jones Laughlin Steel Corporation; that State Highway Route 930 is a public highway; that the road in question was placed in its present location pursuant to an agreement entered into in 1924 among the railroad company, the steel corporation and Beaver County. In some of the statements of claim this agreement is not specifically mentioned.
Various specifications of negligence are set up with respect to the original defendants, including in all cases a specification lodged against Jones Laughlin Steel Corporation and Woodlawn Land Company to the effect that they had been negligent in causing the highway to be moved from a safe location to a less safe location at the foot of a steep slope from which landslides might come.
The affidavits of defense filed by Jones Laughlin Steel Corporation and by Woodlawn Land Company respectively allege that prior to the construction of the present highway there was a road on the other side of the railroad tracks; that the construction of the present highway was authorized by the Borough of Woodlawn and approved by the Public Service Commission of Pennsylvania; that the purpose of building the new road was to abolish dangerous grade crossings which existed on the old highway; that the Public Service Commission authorized the construction of the new highway at the request of The Pittsburgh Lake Erie Railroad Company, with the knowledge and consent of Jones Laughlin Steel Corporation and Beaver County; and that the interest of Woodlawn Land Company in the land occupied by the new highway was dedicated by it to the Borough of Aliquippa, which accepted the dedication.
In the statements of claim and complaints (hereinafter referred to as the "complaint") filed against The Pittsburgh Lake Erie Railroad Company, additional defendant, by Jones Laughlin Steel Corporation and in the similar complaints filed against the additional defendant by Woodlawn Land Company, the pendency of each action is averred and the several statements of claim referred to. Following that, the respective complaints allege that in and prior to 1925 there was a public highway on the eastern side of The Pittsburgh Lake Erie tracks; that in February 1927 The Pittsburgh Lake Erie Railroad Company procured the consent of the Public Service Commission of Pennsylvania to lay the new highway, Constitution Avenue, at the foot of a steep hillside with the intent that the said street should be used by the traveling public; that upon completion of the highway it was so used and that The Pittsburgh Lake Erie Railroad Company knew of such use; that Jones Laughlin Steel Corporation had full knowledge of the proceedings before the Public Service Commission, participated therein, and bore its share of the cost of constructing the highway. No mention is made of this knowledge and participation in the complaints filed by Woodlawn Land Company.
The complaints conclude by stating that the plaintiffs aver that the laying out, building, and construction of Constitution Avenue was a negligent act and that if it be determined that Jones Laughlin Steel Corporation or Woodlawn Land Company, as the case may be, is liable to the plaintiffs by reason of the facts set forth in the statements of claim, The Pittsburgh Lake Erie Railroad Company is jointly liable.
The affidavits of defense raising questions of law filed on behalf of The Pittsburgh Lake Erie Railroad Company state, in effect, that the railroad company is not liable jointly or otherwise to any parties to the actions under the allegations of fact made in the plaintiffs' statements of claim or in the original defendants' complaints for the following reasons:
(1) None of the pleadings avers any facts upon which the railroad company can be held liable.
(2) The road on which the accident happened was a public highway, built and dedicated to public use under an agreement to which Jones Laughlin Steel Corporation, the railroad and Beaver County were parties.
(3) The road was laid out pursuant to consent of the Public Service Commission of Pennsylvania in proceedings in which Jones Laughlin Steel Corporation participated.
(4) The only negligence for which the original defendants claim the railroad is jointly liable is alleged negligence in locating and laying out the new highway, and such negligence, if it exists, is not actionable.
(5) There is no claim that the railroad company at any time material to the case had any ownership in, control over, or duty to maintain the highway or had any ownership in, control over or duty to maintain the slope above the same.
(6) The road as located was adopted as a State highway, to be constructed and maintained at the expense of the Commonwealth, pursuant to the provisions of the Act of Assembly of July 12, 1935, P. L. 746.
(7) The location and construction of the highway cannot be found to have been the proximate cause of the landslide.
(8) As a matter of law the construction, maintenance, and control of the highway and the slopes were vested in the Commonwealth of Pennsylvania.
In none of the pleadings is it averred that The Pittsburgh Lake Erie Railroad Company had any ownership in the slopes adjacent to the highway, nor that it had any control over, or duty to maintain, or to assist in maintaining, the said highway or the slopes.
The only connection of the railroad with the case is that, pursuant to the agreement of 1924 between the railroad company, the steel company and Beaver County, and the consent of the Public Service Commission obtained by the railroad company in 1927, it participated with the steel company in the location and original construction of the highway.
It is conceded that Constitution Boulevard, prior to and at all times after its relocation, was a public highway. By the Act of 1935, P. L. 746, this highway was taken over by the State, becoming a State highway January 1, 1936. Thereafter, and at the time of the slide complained of, the highway was under the exclusive jurisdiction of the State Highway Department: Brunacci v. Plains Township, 315 Pa. 391.
It is claimed, however, that the highway was negligently located and negligently constructed. The answer to this is that both the location and the construction were consented to and approved by the Public Service Commission, which, under the law, had exclusive jurisdiction for the relocation of a public highway where grade crossings were involved. Our Supreme Court has decided that, after a public work has been completed and accepted by a municipality, no action can be maintained by a third party against the contractor for negligent construction: Smith v. Penna. R. R. Co., 201 Pa. 131.
In the case of Elsa S. Hair, etc., v. Stanley Ference et al., 352 Pa. 164, a case arising out of the same accident, and in which The Pittsburgh Lake Erie Railroad Company is an original defendant, this court, in an opinion by Judge KENNEDY, sustained the statutory demurrer of the railroad company. The allegations in the statement of claim were substantially identical with those in the present cases.
It is, therefore, our conclusion that the affidavits of defense raising a question of law ex parte The Pittsburgh Lake Erie Railroad Company, additional defendant, on complaint of Jones Laughlin Steel Corporation and Woodlawn Land Company, in the nature of a statutory demurrer, should be sustained.
Original defendants appealed.
William A. Challener, Jr., with him William A. Challener, Harold F. Reed and Challener Challener, for appellants, Jones Laughlin Steel Corp. and Woodlawn Land Company.
Ralph H. Demmler, with him John J. Heard, John B. Gordon and Reed, Smith, Shaw McClay, for appellee, Pittsburgh Lake Erie Railroad Co.
Thompson Bradshaw, for plaintiff.
Margiotti Casey, for J. C. Slivka.
Dickie, Robinson McCamey, for Ohio River Motor Coach.
Argued November 29, 1945.
The judgment is affirmed on the opinion of Judge SMART of the court below.