Appeals, Nos. 72 and 73, March T., 1953, from judgments of Court of Common Pleas of Allegheny County, April T., 1948, No. 3756, in case of Isabel F. Heinlein, Exrx., Estate of Frederick C. Heinlein, deceased, etc. v. County of Allegheny. Judgments affirmed; reargument refused July 20, 1953.
Paul C. Ruffennach, with him Charles F. Dean, for appellants.
John R. Bredin, with him Dalzell, Pringle, Bredin & Martin, for appellee.
Harry F. Stambaugh, Special Counsel, with him Phil H. Lewis, Deputy Attorney General and Robert E. Woodside, Attorney General, for Commonwealth of Pennsylvania under Rule 46.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
These appeals are from judgments entered on a directed verdict for the defendant at the trial of survival and wrongful death actions instituted by the plaintiff for the death of her husband. The question for decision is whether the defendant county was responsible for the care and maintenance of the highway bridge whereon the plaintiff's decedent received the injuries resulting in his death. The learned trial judge was of the opinion that the responsibility was the Commonwealth's by virtue of its express statutory adoption of the highway prior to the injury of the decedent. For present purposes, it is to be assumed that the testimony adduced by the plaintiff established that the decedent's fatal injuries were the result of the improper maintenance of the bridge and its roadway. The court en banc denied the plaintiff's motions for a new trial and the judgments from which the plaintiff has appealed were entered on the verdict. The Commonwealth has filed a brief under Rule 46 and participated in the oral argument in this court, contending, as does the appellant, that the county was at the time of the injury in suit, and still is, responsible for the repair and maintenance of the bridge in question and the highway upon it.
The bridge was built by Allegheny County in 1929 as a part of the Ohio River Boulevard and is located in the Borough of Avalon where it spans a ravine and a street named Birmingham Avenue by which name the bridge is generally known. The bridge was erected under an agreement between the county and the borough whereby the county undertook its construction, repair and maintenance. In 1941, the Commonwealth took over the boulevard as a State highway pursuant to the Act of May 19, 1941, P.L. 44, 36 PS § 1753-3 et seq., which reads as follows:
"Establishing certain public roads and streets as a State highway, and providing for their construction, reconstruction and maintenance by the Department of Highways subject to certain terms and conditions.
"The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
"Section 1. The following various sections of public roads shall respectively be adopted by the Commonwealth as a State highway to be constructed, reconstructed and maintained at the expense of the Commonwealth under the provisions of present or future laws governing State highways, except as hereinafter provided: [Then follows a detailed description of the Ohio River Boulevard from a point on California Avenue in the City of Pittsburgh to the dividing line between Allegheny County and Beaver County, being approximately 13.5 miles in length.]*fn1
"Section 2. Any portion or portions of the highways as herein described which are located on, or forming part of, any city street shall be taken over for construction, reconstruction and maintenance in accordance with the provisions of present or future laws relating to State highway routes in cities; any portion or portions of the highways as herein described which are located on, or forming a part of, any borough street shall be taken over for construction, reconstruction and maintenance in accordance with the provisions of present or future laws relating to main State highways in boroughs.
"Section 3. The highways established as a State highway under the provisions of this act shall be taken over upon approval of this act.
"APPROVED -- The 19th day of May, A.D. 1941."
The answer to the question presented is to be found in the legislative intent expressed in the Act of 1941, supra.
The rule at common law that a bridge is a part of the highway traversing it was long ago declared to be the law of this State. In Westfield Borough v. Tioga Co., 150 Pa. 152, 153, 24 A. 700, this court said that
"At common law such a structure [i.e., a bridge] is part of the public highway.... And such is the law in this state and generally in this country." In accord with the foregoing, the concept was reiterated in Schlosser v. Manor Township, 293 Pa. 315, 318, 142 A. 322, in the following language, -- "The common law principle that a bridge is necessarily an integral portion of the highway or road crossing it, was early adopted and since invariably followed in this Commonwealth...." See also Eichenhofer v. Philadelphia, 248 Pa. 365, 368, 93 A. 1065; Beaver County v. Central District & Printing Telegraph Company, 219 Pa. 340, 343, 68 A. 846; County of Erie v. Commonwealth, 127 Pa. 197, 207, 17 A. 905; Penn Township v. Perry County, 78 Pa. 457, 459; and Rapho and West Hempfield Townships v. Moore, 68 Pa. 404, 406.
The extent to which the common law rule has been altered by statute in this State has been principally in respect of the duty of repairing and maintaining the bridges in connection with specific classes of highways. As was said in the Rapho and West Hempfield Townships case, supra, -- "As a general proposition, but by no means universal, bridges are treated as portions of the highways which cross them, and are to be maintained by the same persons to whom the duty of repairing the highways is committed: Shear. & Red. on Negligence, § 248. In this state the duty is statutory, and therefore we must look to the statute for its nature and extent." The idea is succinctly stated in Elliott on Roads and Streets, 3rd. Ed., Vol. 1, § 34, p. 42, where, after recognizing that "It cannot... always be true that statutes respecting highways extend to and include bridges", it is said that "whether they do or not must depend upon the general tenor of the particular statute and the purposes it was intended to accomplish." We come, then, to a consideration of the intent and purpose of the Act of
, supra, which deals exclusively with the Ohio River Boulevard which, as we have seen, is described with particularity throughout the detailed course of its length of 13.5 miles from the City of Pittsburgh through numerous boroughs and a township to the Beaver County line.
By the express terms of the Act of 1941, the Commonwealth, as of the effective date of the Act (May 19, 1941), adopted the Ohio River Boulevard as a State highway to be constructed, reconstructed and maintained at the expense of the Commonwealth under the provisions of present or future laws governing State highways. The word "highway" as defined by Sub-section (52) of Section 101 of the Statutory Construction Act of May 28, 1937, P.L. 1019 (46 PS § 601), unquestionably includes the bridges which are a part of a highway. As there ...