Railroad Co. vs. Welsh et al. or property unaccompanied with negligence arising from the operation or use of the defendant's railroad constructed on a public street in the borough of Norristown and so authorized by law, when no land is taken from the plaintiff nor the grade of the street changed by excavation or embankment by the defendant in front of the plaintiff's premises, as distinguished from its construction; and if the jury does not find negligence on the part of the defendants causing such injury, plaintiff is not entitled to a verdict." This point the court below answered as follows: "Refused. It is true that the ordinary and proper use of a railroad can not be regarded as an element of damage, unless the construction of the railroad interferes with the property of the plaintiff; but we can not say that if the jury find that this railroad is not negligently operated they must find a verdict against the plaintiff.” The plaintiffs below are the owners of a certain property situated in the borough of Norristown, having a front of about one hundred and ninety-six feet on Lafayette street. Upon this property there is a church building about thirty feet back from said street, in the rear basement of which is a school-room; a parsonage about forty feet back from said street; and three tenement-houses on the line of said street. The defendant company has constructed its railroad upon Lafayette street, and has laid its tracks close to the curb-stone in front of said church, parsonage and tenement-houses; and has since continuously and constantly run locomotives and trains of passenger and freight cars over said tracks. This action was brought in the court below for damages arising from the erection and construction of the defendants' road, the allegation being that said street or highway is "obstructed, closed and destroyed, and all access to the front of said messuage and tenements, parsonage, church edifice and school is prevented, cut off and taken away, and the same rendered difficult and dangerous of approach; and the said parsonage, church edifice and school rendered unfit and unsafe for use as a parsonage, church and school, and their value wholly and totally destroyed." We have recently discussed so fully the question of consequential injuries resulting from the erection and construction of railroads that a further elaboration of the subject is deemed unnecessary. Our latest case is Pennsylvania Railroad Co. vs. Marchant, 119 Penna. St. R., 541, in which it was held that the word “injury” (or injured), Railroad Co. vs. Welsh et al. as used in Section 8, Article XVI, of the Constitution, means such a legal wrong as would be the subject of an action for damages at common law; that for such injuries both corporations and individuals now stand upon the same plane of responsibility. In that case, as in the prior case of Railroad Co. vs. Lippincott,.116 Penna. St. ▾ R., 472, there was no injury to the property by reason of the erection and construction of the road; and we held that the Constitutional provision was not intended to apply to injuries which were the result merely of the operation of the road as distinguished from its construction, and in such case there could be no recovery for the annoyance of smoke, noise and cinders caused by the running of the company's trains, unaccompanied by negligence. In other words, the injuries resulting from the exercise of a lawful business in a lawful manner, without negligence and without malice, are damnum absque injuria. We can not, however, apply that rule to this case for obvious reasons. In Railroad Co. vs. Lippincott, and Railroad Co. vs. Marchant, supra, as in this case, there was no actual taking of any portion of the plaintiff's property. But there the analogy ceases. In the cases cited there was no injury by reason of the construction of the road; here there was an injury, and a serious one, the direct result of the construction. The track was laid close to the curb-stone on the side of the street next to the plaintiff's property, by means of which the access thereto, if not actually cut off, was rendered dangerous. In this respect the case is upon all fours with Railroad Co. vs. Duncan, III Penna. St. R., 352, and County of Chester vs. Brower, 117 Id., 647. It was urged, however, that the mere laying down of the tracks in front of the plaintiff's property was not of itself any injury; that it was a benefit, in view of the fact that the street had been greatly improved by having been repaved with Belgian blocks in a superior manner; and that the injury was solely the result of the use and operation of the road. This is plausible, but unsound. Where the question is the obstruction of access to a property by the building of a railroad, it is impossible to separate the construction from the operation of the road. Such a doctrine would be a misapplication of the rule laid down in Railroad Co. vs. Marchant, supra. It would be an unsavory technicality to hold that a railroad laid down by the curb in front of a man's door, with trains constantly passing and repassing, did not Plymouth Township vs. Graver & Co. interfere with his access to his house and was not an injury caused by the construction of the road. No authority for such a proposition can be found in anything this court has ever said. We are of opinion that in the case in hand there is an injury arising from the construction. This being so, it stands upon the same footing as to consequential injury as if there had been an actual taking of a portion of the plaintiff's property. Judgment affirmed. TOWNSHIP OF PLYMOUTH vs. L. K. GRAVER & CO. Duties and responsibilities of supervisors considered. Responsibility of townships for negligence of the supervisors. A public road and a railroad ran parallel, on the same level and immediately adjacent ; there was no fence or barrier between the two. A horse took fright at a passing train, and dashed itself against the cars. The court left it to the jury whether this was such negligence in the supervisors as rendered the township liable to the owner of the horse. Held, not to be error. Supervisors are in no way responsible for the condition of the surface of the land outside the limits of the road, nor are they bound to fence the road merely to prevent the traveler from straying out of the path; but they are liable for injuries to a traveler on the road caused jointly by a defect in the road and a defect in the adjoining premises, provided the defect in the road was the proximate cause of the injury. If there is a concurrence of circumstances which render the road a place of peril and danger to the traveler, the township is held to do whatever is reasonable and practicable to avert the danger that threatens. court. ERROR to the Court of Common Pleas of Montgomery county. Chas. H. Stinson, Esq., for plaintiff in error. Charles Hunsicker, Esq., for defendant in error. The opinion of the Supreme Court was delivered March 25, 1889, by MR. JUSTICE CLARK. The duties of the supervisors in the opening and repair of the public roads are defined by statute. The sixth section of the act of 1836 provides that the public roads shall be effectually opened and constantly kept in repair, and at all seasons shall be kept clear of all impediments to easy and convenient passing and traveling, at the expense of the township, as the law shall direct. For any willful Plymouth Township vs. Graver & Co. or wanton failure to discharge these duties the supervisors are personally liable, and the township is responsible in damages to those who suffer injury from their neglect: Dean vs. New Milford, 5 W. & S., 545. The liability of the township is commensurate with the duty, and hence in each case the injury is as to the extent of the duty enjoined by law. The degree of care which is required of road supervisors has no exact legal standard; the law does not impose any absolute liability for every insufficiency of a road, or for every impediment to easy and convenient travel. They are required to do what is practicable to be done, and to preserve a reasonable condition of safety with reference to the kind of road, its peculiar location, its adjacency to places of peril, and the amount and kind of travel it accommodates. It may be said, generally, that they are bound for reasonable and ordinary care, according to the circumstances. Where no danger may be anticipated, or the peril is but slight, a less degree of vigilance will suffice than where the danger is manifest: Turnpike Co. vs. Railroad Co., 54 Penna. St. R., 350. The object of a public road is to afford an easy, convenient and reasonably safe means of passage for persons traveling thereon with horses, wagons, etc.; and the duty of the supervisors is, as far as practicable, to do what is reasonably necessary to secure that object. It is contended that the road in question in this case was, at the time of the occurrence complained of, in good repair; that it was in no way obstructed; and that as the horse took fright at the locomotive and was killed by the cars outside of the limits of the road, the township can not be held for the consequences. But granting that there was no physical obstruction or defect in the road, was there any other impediment to easy and convenient travel upon it? It is said that the passage over it with horses and wagons was not safe; that it was located along and immediately adjacent to the track of the railroad, and that the effect of the passage of locomotives and cars on the railroad at high rates of speed in such near proximity to the road was to frighten horses--in many cases to make them unmanageable; and that in the absence of barriers erected for the protection of the public the place was so dangerous that travelers were exposed to the utmost peril. It is argued that as there was a fence along the road on the farther side from the railroad and none between the road and the railroad, a horse in attempting to escape Plymouth Township vs. Graver & Co. from the object of its fright was liable to turn on to the railroad; and that, anticipating the results likely to ensue, it was the duty of the supervisors to erect suitable barriers between the road and the railroad at this point. It is certainly true, as a general rule, that the supervisors are in no way responsible for the condition of the surface of the land outside the limits of the road, nor are they bound to fence the road merely to prevent the traveler from straying out of the path; but they are liable for injuries to a traveler on the road caused jointly by a defect in the road and a defect in the adjoining premises, provided, of course, the defect in the road was the proximate cause of the injury: Burrell vs. Uncapher, 117 Penna. St. R., 353; Sher. & Redf.'s Neg., 347. It is equally true that supervisors are not bound to furnish roads upon which it will be safe for horses to run away; they are bound, however, to furnish roads that are reasonably safe. If they do not, and a traveler is injured in consequence of culpable defects therein, it is no defence that the horse at the exact time of the injury was running away or was beyond his control: King vs. Cohoes, 77 N. Y., 83; Sher. & Redf.'s Neg., 346, and cases there cited. There may be such a state of things, however, at a particular place as will require the erection of a barrier in order to secure a reasonable degree of safety for public travel. In Lower Macungie Township vs. Merhoffer, 71 Penna. St. R., 276, there was a precipitous bank in the roadside caused by an excavation made in mining; and although the road was wide enough under ordinary circumstances, and was otherwise in good repair, it was held, as a matter of law, to be the duty of the supervisors to guard against danger by erecting a barrier along the margin of the road, so that persons might not in the night-time or by the fright and shying of a horse be thrown over the bank. In general, however, whether a dangerous place, not within the highway but adjacent to or near it, is so near as to make travel unsafe, is a matter for the jury: Warner vs. Holyoke, 112 Mass., 362. The question is whether or not the dangerous place is in such close proximity to the highway as traveled and used as to render the use of the highway unsafe; the decision of such a question is most appropriately made by submission of it to the practical judgment and experience of a jury upon consideration of all the proofs respecting |