Southern Ry. Co. v. Bailey gence in the defendant, except that the negligence of the former is called contributory negligence. "The general rule adverted to is subject, however, to the qualification that where the negligence of the defendant is the proximate cause of the injury, and that of the plaintiff only the remote cause, the plaintiff may recover, notwithstanding his negligence; the doctrine in that respect being that the law regards the immediate or proximate cause which directly produces the injury, and not the remote cause which may have antecedently contributed to it. From that principle arises the wellestablished exception to the general rule that if after the defendant knew, or in the exercise of ordinary care ought to have known, of the negligence of the plaintiff, it could have avoided the accident, but failed to do so, the plaintiff can recover. In such case the subsequent negligence of the defendant in failing to exercise ordinary care to avoid injuring the plaintiff becomes the immediate or proximate and efficient cause of the accident, which intervenes between the accident and the more remote negligence of the plaintiff. "It was this principle that was invoked by the plaintiff upon the first theory of the case, and applied by the court in plaintiff's instruction and in the modified instruction of the defendant. But the second theory presented a case where the proximate and efficient cause of the accident involved the concurrent negligence of both plaintiff and defendant, unbroken by any efficient supervening cause, and to such case the exception referred to obviously has no application. Upon that theory, the act of Martin and the conduct of the motorman were so substantially concurrent that it was impossible to separate the conduct of the former from the injury itself. The doctrine under discussion is fundamental and elementary, and has been expounded time and again by this and other courts, from Davis v. Mann, 10 Mees & W. 545, decided in the year 1842, down to the present time." See, also, C. & O. Ry. Co. v. Corbin's Adm'r, 110 Va. —, 67 S. E. 179. If it be the duty of a person upon the track of a railway to keep a constant lookout for approaching trains (and of this there can be no question), and if it be the duty of the servants of the company in control of the train to exercise reasonable care to discover the presence of a person upon the track, and if in the exercise of such reasonable care the presence of such person would be discovered, and the person on the track is injured, and there be no other fact proved, then it is apparent that the case stated would be one of mutual and concurring negligence, and there can be no recovery. The duty was equal and each is equally guilty of its breach. If, however, it appears that those in control of a train in the discharge of their admitted duty to keep a reasonable outlook discover, or should Pittsburg Rys. Co. v. City of Pittsburg have discovered, a person upon the track, and there be superadded any fact or circumstance brought home to their knowledge sufficient to put a reasonable man upon his guard that the person upon the track pays no heed to his danger and will take no step to secure his own safety, then the situation changes, and the negligence of the person injured becomes the remote cause or mere condition of the accident, and the negligence of the railroad company the proximate cause, and there may be a recovery. For these reasons, the judgment of the circuit court must be reversed, and this court will enter such judgment as that court should have entered. Reversed. BUCHANAN, J., absent. PITTSBURG Rys. Co. v. CITY OF PITTSBurg. (Supreme Court of Pennsylvania, Jan. 3, 1910.) [75 Atl. Rep. 681.] Railroads Rights in Streets-Right to Cross.-That a city does not properly maintain a street for public use does not affect its right to prevent a railroad company from occupying the street. Railroads Rights in Streets-Right to Cross.—A railroad company to cross a city street without municipal consent must possess such charter power, though it owns the land on both sides of the street. Railroads Rights in Streets.-That a lessee railroad company under its charter has power to cross city streets without municipal consent would not authorize it to extend a leased road over a street without such consent where the charter of the leased road requires such con sent. Corporations-Implied Powers.-The doctrine of implied power of corporations will not be extended to permit that to be done by a corporation which the Legislature has previously said shall not be done, even if without such implied power the grant of some particular franchise would be valueless. Appeal from Court of Common Pleas, Allegheny County. Action by the Pittsburg Railways Company against the City of Pittsburg. From a decree awarding a preliminary injunction, defendant appeals. Reversed. Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. C. A. O'Brien and C. K. Robinson, for appellant. Pittsburg Rys. Co. v. City of Pittsburg BROWN, J. The Mt. Washington Street Railway Company is a corporation chartered under the general street railway acts of the commonwealth, and the Pittsburg & Castle Shannon Railroad Company was incorporated under the general railroad act of April 4, 1868 (P. L. 62). By leases dated, respectively, March 30, 1903, and August 25, 1905, the Pittsburg Railways Company became the lessee of these two companies. It was originally incorporated as the Surety Contract Company by the act of May 25, 1871 (P. L. 1170), and under its present name has accepted the provisions of the Constitution of 1874. By the act incorporating it it is empowered "to contract with any person or persons, firms, corporations or any other party, howsoever formed, existing, or that may hereafter exist, in any way that said parties, or any of them, may have authority to do, to build, construct, maintain or manage any work or works, public or private, which may tend or be designed to improve, increase, facilitate or develop trade, travel or the transportation and conveyance of freight, live stock, passengers and any other traffic, by land or water, from or to any part of the United States, or the territories thereof; * * *and to purchase, make, use and maintain any works or improvements connecting or intended to be connected with the works of the said company, and to merge or consolidate or unite with the said company." Under these broad terms, the Pittsburg Railways Company asserts power to construct an extension or branch from the Pittsburg & Castle Shannon Railroad to connect with the tracks of the Mt. Washington Street Railway Company. This branch is to be constructed over rights of way owned by the appellee, but Chess street, in the city of Pittsburg, will be crossed by it practically at right angles, and the single question before us on this appeal is the right of the appellee to build the branch across the said street without the city's consent. The court below has found that Chess street is one of the highways of the city, beneath which a sewer has been constructed, and the appellee has not obtained municipal consent to build the branch across it; but, notwithstanding this, the preliminary injunction prayed for by the appellee was awarded, enjoining the city from interfering with the building of the branch over the street. In the opinion sustaining the contention of the appellee that it has power to cross the street without the city's consent, reference is made to the impassable condition of the highway at the point of the intended crossing and for some distance on either side thereof, and the conclusion of the court was that under the circumstances neither the city nor the public would now suffer any inconvenience from the crossing, and that, if in the future inconvenience should be suffered by it, power exists to enforce a remedy. When a municipality stands upon its right to resist the occupation or crossing of one Pittsburg Rys. Co. v. City of Pittsburg of its streets by a railroad or street railway company, the condition of the street is not involved, for it is no concern of the invading company that the municipality may not be properly maintaining the highway for the use of the public. The court's reference to the condition of the street, apparently as one of the reasons why the injunction should not go out, is utterly inconsistent with the view properly expressed in another portion of the opinion, that this street, even in its present condition, could not be crossed without the city's consent, either by the Pittsburg & Castle Shannon Railroad Company, the Mt. Washington Street Railway Company, or the appellee as the lessee of either. Equally immaterial is the fact commented upon in the opinion that the appellee is the abutting owner of the land on each side of the street at the point of the proposed crossing. With or without such ownership, when a railroad or street railway company attempts to cross a public street in a city without municipal consent, it must point to its power in its charter to do so, and the court below, after the irrelevant references to the condition of the street and to the appellee's alleged ownership of the adjoining lands, held that the power which it would exercise is to be found in its charter as existing by necessary implication. The learned chancellor's view as to this is thus expressed: "Power is therein expressly conferred upon the plaintiff to contract with any other party to construct any work which may tend to improve, increase, facilitate, or develop trade, travel, or the transportation of freight and passengers, and to erect, construct, maintain, or conduct in its own name and for its own benefit any such work. And the plaintiff is likewise authorized to make, use, and maintain any works or improvements, connected or intended to be connected with the works of the said company. Now, both the Pittsburg & Castle Shannon Railroad and the Mt. Washington Street Railway are plainly 'works' of the plaintiff corporation, within the meaning of said act. The proposed track and sidings are, of course, intended to connect these two 'works' of the plaintiff. The power to make the connection is plainly conferred upon the plaintiff in the said act of its corporation. There is no limitation upon the discretion of the plaintiff as to where this connection shall be made. In making the connection, as intended, it is necessary to cross Chess street at the point indicated. Therefore the plaintiff has the right to cross Chess street as a necessary implication of its grant; otherwise the grant would entirely fail. If the plaintiff cannot cross Chess street with its intended construction, it cannot exercise the power with which the Legislature has clothed it. Perry County R. R. Extension Co. v. Newport & Sherman's Valley R. R. Co., 150 Pa. 193, 24 Atl. 709." In thus reasoning and concluding, the court below failed Pittsburg Rys. Co. v. City of Pittsburg to bear in mind that though the tracks which the appellee proposes to lay from the Pittsburg & Castle Shannon Railroad will be a "work" of its own, connecting two "works," to be regarded also as its own under the leases, the branch, with its sidings, will, after all, be but an extension and part of the Pittsburg & Castle Shannon Railroad. That company concededly could not cross Chess street without the city's consent, and how can another, now controlling and operating it, do what it could not do in the absence of express power from the Legislature to do the thing forbidden to the railroad company? The branch or extension is for the purpose of increasing the facilities of transportation now furnished by the Pittsburg & Castle Shannon Railroad Company through its lessee, and, keeping in view the fact that Chess street, if crossed, will be crossed by a part of the system of the Pittsburg & Castle Shannon Railroad, the right to so cross, in the teeth of the act of 1868, must expressly appear, for the doctrine of implied power is not to be stretched to permit that to be done by a corporation which the Legislature has previously said shall not be done, even if without such implied power the grant of some particular franchise should be valueless. With this distinction in mind, the case of Perry County R. R. Extension Co. v. Newport & Sherman's Valley R. R. Co., relied upon by the court below, is not at all in point. While we there held that though the act of February 19, 1849 (P. L. 79), contains no express authority allowing one railroad company to cross the tracks of another, such power exists under that act by necessary implication, because the grant in some instances would entirely fail, we could not have so decided if the act of 1849 had forbidden such a crossing; and so of Northern Coal & Iron Co. v. Wilkes-Barre, 218 Pa. 269, 67 Atl. 352, in which, for reasons stated at some length in the opinion, we held that the company, under its charter, had the implied right to cross certain streets of the city of Wilkes-Barre. In view of the act of 1868, there is no implied power in the appellee to cross Chess street. The decree of the court below is reversed and the preliminary injunction is dissolved, the costs on this appeal to abide the final decree. |