Mellick v. Pennsylvania Railroad

Citations

• 203 Pa. 457
• 53 A. 340
• 1902 Pa. LEXIS 738

Syllabus

<p>Appeals — Practice—Appeal from Superior to Supreme Court — Assignment of error.</p> <p>In regavd to the assignment of errors, an appeal from the Superior Court to the Supreme Court is analogous to an appeal from a judgment of the common pleas or orphans’ court on exceptions to the finding and report of an auditor or referee. The proper form, therefore, is that, “ The Superior Court erred in not sustaining (or in sustaining as the case may be) the first assignment of error to the judgment of the common pleas, to wit: ” etc.</p> <p>Road law — Obstruction of road — Act of June 13, 1836, P. L. 558.</p> <p>A contractor for the construction of an approach to a county bridge who obstructs a public road lying at right angles to the approach to a bridge, without any real necessity therefor is guilty of violating section 24 of the Act of June 18, 1836, P. L. 558, which is as follows: “ Whenever the whole or any part of a road shall be changed or supplied, the same shall not be shut up or stopped until the road laid out to supply the place thereof shall be actually opened and made.” The burden is on the contractor to show an absolute necessity for the obstruction.</p> <p>Where a contractor for the construction of an approach to a county bridge obstructs a public road, and a railroad company at another point in the road dumps earth in order, as it is claimed, to give access to its station which had been cut off by the obstruction, and the contractor is thereby compelled to haul material from a greater distance, the railroad company is not liable to the contractor for his loss, if in fact it damped the earth in good faith for the purpose stated. In a suit to recover such loss the railroad company for the purpose of showing its good faith, and also to show why it had not completed the new way to its station, may offer in evidence a decree by which it was enjoined from doing further work on such road.</p> <p>The necessity for closing an old road before the actual opening of ane