11 Pa. Super. 112 | Pa. Super. Ct. | 1899
Opinion by
This case is not without difficulty and in some of its minor aspects is undeniably close. Viewing the end from the beginning, however, and taking into consideration the charge of the court, the answers to the points of both plaintiff and defendant and the verdict of the jury, we are of the opinion that the judgment should be sustained.
The plaintiff, riding on horseback in company with a neighbor, in going from a neighboring town to his home in the nighttime, passed over the ordinarEy traveled road and, so far as the evidence shows, the only road which led to his home. The night was dark, the road at its narrowest point, according to the plaintiff’s testimony, was nine and one haE feet wide; according to that of the defendant, teh and one half feet. Upon the one side of the road was an abrupt embankment, caused by the excavation of the road; on the other side, a declivity terminating in a small run at the bottom. The plaintiff’s horse, being next the declivity, was frightened by a splash in the stream — whether caused by the plunge of a muskrat or the drop of a stone is not known. The horse became frightened, suddenly drew back, made a plunge or two forward and went down the declivity, falling upon the person of the plaintiff and breaking the lower bones of his leg, in consequence of which he was confined to his house for several months, was put to considerable expense, was subjected to loss of time in Ms business and endured much physical suffering.
The plaintiff’s counsel offered to ask the witness the following question: “I ask the witness to state what damage he has
The second assignment relates to an offer made by the defendant to prove by the neighbor who accompanied the plaintiff “ that the particular part of the road where it is alleged Mr. Closser received the injuries was smooth and safe and conven
The offer made by the defendant, as contained in the third assignment of error, is open to the same objection as the one just referred to and was properly rejected.
We can see no error in the answers of the court to the plaintiff’s first, second and sixth points which constitute the fourth, fifth and sixth assignments of error, and they require no special consideration or discussion.
The other assignments of error may all be considered under two propositions. Was the plaintiff guilty of contributory
As to the latter proposition, appellant’s counsel argue very strenuously and cite numerous authorities, upon which they apparently confidently rely, that it was the duty of the court to instruct the jury, as a matter of law, that the proximate cause of the accident was the fright of the plaintiff’s horse and that he was not, therefore, entitled to recover. The general rule upon this subject seems to be that where the primary cause is within the control of the plaintiff or is the direct result of human agency of which the municipality has neither knowledge nor notice, or is the result of such extraordinary circumstances that the municipality could not, in the nature of things, have anticipated them or foreseen their occurrence, or where there is an intervening and independent cause these will be regarded as the proximate cause, and the plaintiff will not be allowed to recover, even if there be negligence on the part of the municipality in not establishing and maintaining proper safeguards upon a highway such as existed in this case; but where the accident results from a cause which the authorities of the township could reasonably foresee or apprehend, the fact that no guards or barriers were erected at the side of a highway such as is shown to have been maintained in this case, and the consequent dangerous character of the road will be regarded as the proximate cause and the municipality will be liable in case of a personal injury. A consideration of some of the authorities upon this subject may not be out of place. Chartiers Township v. Philips, 122 Pa. 601, was a case in which the accident was caused by the fall of the plaintiff’s horse which was harnessed with a collar too small which choked it and caused the fall. “ The defendant, in the fourth point, asked the court to charge the jury that, if the accident was caused by the uncontrollable struggle of a choking horse or from this cause concurring with a defect in the highway, their verdict must be for the defendant. To this the court replied: ‘Refused, unless the plaintiff
The facts of the case under consideration clearly distinguish it from any and all of the cases above referred to. The accident occurred upon a dark night, the plaintiff was riding an ordinary horse which his wife and children were in the habit of driving. It is true that there was some evidence as to his having used rather emphatic language in regard to its foolishness. This was denied but, even if true, it would be accounted for by Ms excitement and the condition in which he found himself after the accident. The accident occurred at a point at which it would have been absolutely impossible for two vehicles to pass, being, according to one witness, nine and one half feet and, according to the defendant’s own testimony, ten and one
It is needless to multiply authorities. They are numerous and, when carefully read, do not in any way contradict each other. The question of the proximate cause of the accident was left to the jury. Their finding establishes the fact that the proximate cause was the narrowness of the way and the absence of guard rails and that the plaintiff was not guilty of contributory negligence. The recovery, therefore, was clearly justified and, the moderate amount of the verdict clearly showing that the plaintiff’s testimony as to the amount of his damages was not seriously considered, we think the judgment entered upon the verdict should stand, notwithstanding the admission of the testimony complained of in the first assignment of error.
Judgment affirmed.