Pittsburgh & Birmingham Passenger Railroad v. Burgess of Birmingham

The opinion of the court was delivered, by Read, J. — The duties of the defendants below arise not only from the Act of Assembly, but also from their contract with the plaintiffs, the borough authorities, without whose consent they could not have used and occupied Carson street. The charter [43] required them to keep the streets in perpetual good repair. The borough ordinance, which contained the terms and conditions of their contract, enacted that “ said Pittsburgh and Birmingham Passenger Railroad Company, in addition to the other requirements of the charter, shall keep Carson street in perpetual good order and repair from curb to curb its whole length, from the time of the acceptance of this ordinance.” Carson street is given to the plaintiffs to lay their track upon— graded, curbed, and paved with boulders. It is the principal street and thoroughfare of the borough, with a paved roadway of only thirty-two feet from curb to eurb, of which the cars in moving occupy about eight feet in the centre, leaving only twelve feet on each side, including the gutters, for ordinary vehicles. It is clear, therefore, under any fair construction the duty of cleansing the street, that is, keeping all in good order, devolved upon the railroad company, and not upon the municipal corporation. Judgment affirmed.