190 Pa. 530 | Pa. | 1899
Opinion by
At the point where the accident occurred the width of the road did not exceed eight feet. On the western'side of it there was a perpendicular ascent of about twelve feet, and above that a high and steep hill. On the eastern side of it there was a perpendicular descent of about six feet created by the wall which supported the road, and from the base of this wall'to the railroad the distance was 129 feet, with a slope of eighty degrees. There was no guard rail or barrier of any description on the eastern side. The condition of the road and the dangers attending travel upon it in the night-time or in the daytime were known to the Bailey brothers. They passed over it in the forenoon of the day of the accident. They rode in a buggy, Edward driving the horse attached to it, and John leading a horse behind.it. As they neared the Narrows John left the buggy and walked behind it with his horse until they passed them, when he resumed his seat in the buggy and led his horse as before. They were then about nine miles from Morris, where they arrived at noon. While at Morris they purchased two strange horses, giving in part payment the horse they had led there. About 5 o’clock in the afternoon they left Morris, taking with them the strange horses, and proceeded homeward. In returning they rode in the buggy, John driving the horse harnessed to it, and Edward leading the strange horses behind it. They reached Blackwell’s, about two miles from the Narrows, at 6:30
This suit was brought by the guardian of Edward’s children, and in their interest. It was based on the alleged negligence of the defendant which on the trial of the case in the court below was established by clear and satisfactory evidence. But the defendant alleges that Edward Bailey’s negligence was the sole cause of, or at least contributed to, his untimely death. As sustaining this claim of contributory negligence on the part of the deceased the conditions already described are referred to and the cases supposed to be analogous to the case at bar are cited. Five of the cases cited, to wit: Forks Township v. King, 84 Pa. 230, Crescent Township v. Anderson, 114 Pa. 643, Hill v. Tionesta Township, 146 Pa. 11, Mueller v. Ross Township, 152 Pa. 401, and Winner v. Oakland Township, 158 Pa. 405, clearly recognize and sustain the settled rule or principle that “ a person who knows a defect on a highway and voluntarily undertakes to test it when it could be avoided cannot recover against the municipal authorities for losses incurred through such defect.”-
The attempt of the Bailey brothers to pass through the Narrows in the night-time was, under the circumstances, the assumption of an obviously dangerous risk, the nature and magnitude of which they fully comprehended. It was a risk which they well know could be avoided, or at least materially minimized, by the postponement until morning of their journey homeward. When they came to the Narrows John left the buggy and, taking with him the lantern he lighted at Blackwell’s, walked a few paces ahead of the horse he had driven from Morris. Edward remained in the buggy to drive the horse attached to it and lead the strange horses behind it. This was a task which neither of the brothers had previously undertaken. The performance of either branch of it called for the exercise of the utmost care and skill of the person charged with it. He could not allow the horse attached to the buggy to go at will without increasing the risk he had assumed. He
Judgment reversed.