162 A. 178 | Pa. Super. Ct. | 1932
Argued April 19, 1932. The plaintiff, Blassotti, brought this action in trespass against the defendant for the damages he had sustained in the destruction of his automobile, through the negligent location and maintenance in a public road of an appliance in connection with defendant's natural gas line.
About ten o'clock on a dark night, (April 13, 1926), the plaintiff started to drive his Dodge coupe from the improved Masontown-Uniontown road to Footedale. The Footedale road was an unimproved dirt road, thirty-three feet wide between fences. Between twenty-one and twenty-five feet of this width was taken up by the beaten roadway, the rest being a ditch and small bank, etc., on either side. The traveled portion of the road was in bad condition, at the time, with ruts so deep that the axles scraped the road, and after the plaintiff had gone about one hundred and fifty yards he found that it was impassable and decided that the best thing he could do was to turn around and go back. At this point the road seemed almost level for its full width, and the fence on the south side had been removed for several rods in connection with the laying of defendant's pipe line. While in the act of turning his car he hit a valve, or iron projection above a valve, in the defendant's gas pipe line, which was about four to six inches in diameter and which stuck up about eight to ten inches above the road, — but which the plaintiff had not seen — and broke it; and the gas, in some way, *406 became ignited and burned the car. The valve was located between two and three feet away from the beaten roadway and about the same distance from the fence line, and was just at the edge of the shallow ditch along the side of the road. The pipe line itself was buried underground, but at this point, where it crossed the road, there was the projection above described.
From the judgment, following a verdict for the plaintiff, the defendant has appealed. The case was here before in
There was no proof in the case of the Footedale road having been laid out by court order, and the appellant contends that it must be considered as a road by prescription; and applying the rule that where the public has acquired rights in a street or road by prescription, and not by dedication, such prescriptive right will include only land actually used for street or road purposes, (Ryman v. Borough of Girard,
The court below having correctly ruled that the defendant's valve or valve covering was located in the public highway, submitted the question of its negligence in maintaining it there to the jury in accordance with the pronouncements of the Supreme Court in Potter v. The Natural Gas Co., supra; Ide v. Lake Twp., supra; Lamb v. Pike Twp., supra; Emery v. Phila.,
The plaintiff had not been on the Footedale road for eighteen months and was not acquainted with its bad condition on the night he attempted to use it. It had not been closed to travel and he could not be held guilty of contributory negligence because he used it instead of another and more improved highway: Henigin v. Booth Flinn,
Nor do we find any error in the refusal of the court below to withdraw a juror and continue the case because of the remarks of plaintiff's counsel in his closing talk to the jury. The remarks objected to did not constitute an unfair presentation, by way of argument, of the plaintiff's case, but concerned matters which might properly be considered by the jury.
The nineteenth assignment of error is so well answered in the opinion of the court below that we adopt the following extract from it: "While the trial was in progress, E.C. Higbee, Esq., of counsel for defendant, made the following motion: `Your Honor please, the defendant moves to withdraw Juror Number Nine, for the reason that he was talking to the plaintiff and commenting about the case and the conduct of the case and the conduct of counsel, after court adjourned last night'...... After the motion was made, we had the plaintiff sworn and examined in open court. His testimony was to the effect that at the close of the afternoon session, as jurors, witnesses, and *409 others were leaving the court house, Juror Number Nine spoke to him in the presence of five or six of his witnesses, as they were walking along the street, and made a remark that counsel was rather slow. This is all the juror said. This remark was no doubt occasioned by the fact that counsel were spatting back and forth during the trial, and also there were numerous exceptions taken to the rulings of the Court, which may have appeared to him to have delayed the trial. There were present with the plaintiff, at the time the remark was made, Frank Martin, Mabon Harbison, and William Cavalcante, witnesses in the case. These men are good citizens, and reliable, and could have been called by Mr. Higbee if he had desired to prove that Mr. Blassotti had not told all of the conversation. The case was tried in Court Room Number Three, which is located on the second floor of the court. We have only one elevator in the building, and in leaving the court house practically everyone uses the same exit, going out the front way onto Main Street, and then westwardly on Main Street. It is the daily practice, during the trial of cases, for attorneys, jurors, witnesses, spectators, and others, to intermingle as they leave the court rooms and the court house. Of course, this often results in attorneys and others passing the time of day, or speaking in a casual way to jurors. While it is reprehensible conduct for any person to speak to a juror, or for a juror to speak to anyone about the case while it is being tried, yet in the present case we are satisfied that the alleged misconduct of the juror was so trivial that we would not be warranted in granting a retrial. We are satisfied that this juror was not biased or prejudiced, and that neither he nor the plaintiff nor any of the persons present thought there was anything improper in the remark which was made."
In a somewhat similar, but less excusable, situation the Supreme Court adopted the following language of *410
the court below: "The charges made on behalf of defendant of misconduct on the part of a juror were deemed by this court worthy of the most searching scrutiny, and the closest attention, but as before indicated, the weight of the testimony discloses a case of casual statement, showing a tendency to gossip rather than a prejudice against the defendant. Such tendency to gossip is to be reprehended, and jurors should remember that `silence is golden,' but at the same time I fail to see how the defendant was injured, or why a new trial should be granted on this ground": Com. v. Hurd,
We are satisfied that the reference of the juror to counsel's "slowness" was not a criticism of the attorney for the defendant indicating any bias against him, but a casual expression on his part that the case was progressing a little slowly. If by his reference to "counsel" the juror had in mind the counsel for one side, rather than all the counsel in the case, there is nothing to indicate that he referred to counsel for defendant rather than counsel for plaintiff. We agree that it does not warrant a new trial. As was well said by the learned president of the court below: "It has been over five years since the plaintiff's car was destroyed. If substantial justice is to be accorded in this case, it is high time that this case was disposed of. We see no reason why the last verdict of the jury should be disturbed."
The assignments of error are overruled and the judgment is affirmed.