Dissenting Opinion by
Mr. Justice Musmanno:May a contractor, engaged in the construction of a public highway, delay his work unnecessarily and escape responsibility for the losses such delay inflicts upon a public carrier charged with the duty of using that highway for the public welfare?
The Ohio River Motor Coach Company, plaintiff in this case, held a certificate of public convenience from the Pennsylvania Public Utility Commission for transportation of passengers by motor coach between Aliquippa and Pittsburgh. The sliding and disintegration of Beaver Road for a certain distance compelled the Coach Company to reroute its bus line, adding 29 miles to its regular route. This rerouting not only worked havoc with the plaintiff’s schedule but required it to put on extra buses and increase its number of employes, all of which added heavily to its running expenses and seriously reduced its revenues.
The defendant Booth & Flinn Company was engaged in extending the Ohio River Boulevard for the State Highway Department under a contract which required it to clean up the slide and reactivate the Beaver Road *407for travel. The defendant undertook to do this, but it is the plaintiff’s contention that it did the work so negligently and slothfully that 130 days were consumed in a job which could have been completed in 28 days.
The defendant company owed no contractual duty to the plaintiff to accelerate the rehabilitation of Beaver Boad. It did, however, have the responsibility, which everyone has toward the public, of not unnecessarily impeding traffic on Beaver Hoad or any highway.
Nothing can be more absolute than the right of the owner of a house to repair it in such manner as he chooses, and the public must submit to the inconvenience occasioned by that repair work. But, as far back as 1812, it was held in England, whence came our common law, that “if this inconvenience is prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance.” Rex v. Jones, 3 Campbell’s Reports 229.
The people of Pennsylvania are invested with an inalienable right to the free and unrestricted use of its highways. So aware were the lawmakers of this State of the imperative need to keep the flow of traffic on the highways uninterrupted that they included in the Act of 1836, June 13, P. L. 551, Section 24 (36 P.S. 2014), the provision: “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.”
This Act was cited with approval in the case of Mellick v. Pennsylvania Railroad, 203 Pa. 457, 53 A. 340: “While we might hesitate to say that there may not be a case of necessity so absolute as to permit the temporary closing of the old road before the actual opening of the new, yet the necessity must be real, *408must be clearly proved, and the onus of so proving it was on the plaintiff.” (the contractor in that case.)
So long as the closing of the road answers an obvious need, as certainly the temporary barricading of Beaver Boad responded to the exigencies of the occasion, anyone who is injured by that circumstance falls within the unfortunate situation recognized in the law as damnum absque injuria, but once the necessity passes, the roadblocker is answerable to the public as much as if he had capriciously and wantonly torn a trench across a perfectly functioning roadway.
Since it cannot be questioned that the tortious blocking of a highway will render the tort-feasor liable in damages to anyone who suffers because of that tort, it is equally clear that liability follows when the reasoning for the legitimate blocking ceases and an illegitimate blocking begins.
It is to be presumed from the lower court’s decision that the period of 130 days was regarded as a reasonable time within which to repair the Beaver Road. Suppose Booth & Flinn had taken, under the same circumstances, 200 days or even a year or more to .complete the operation. Somewhere along the line the defendant would then have lost its cloak of immunity. The plaintiff claims that the cloak was lost long before .the 130 days expired. It could well be that the jury, had it been permitted to decide the issue, would have returned a verdict for the defendant, saying^ that 130 days for the colossal job involved was not an undue delay and the defendant would have been absolved from any blame. But, on the other hand, it could have found that the defendant was lackadaisical in the performance of its obligation to the public, that the initial delay of 30 days in starting the cleanup was inexcusable and that the plaintiff company, because of the negligence of the defendant company, was entitled to damages for the losses it admittedly suffered.
*409Taking all tbe proved facts in tbe case and all the inferences to be drawn therefrom as favoring tbe plaintiff, as we are required to do in a review of this kind, I believe it made out a prima facie case for damages and that it was error to withdraw this issue from the jury.
I would remove the nonsuit and order a new trial.