232 Pa. 198 | Pa. | 1911
Opinion by
The negligence charged in this case is that appellant township failed to erect and maintain a guard rail at an alleged dangerous place in the highway. If appellant is liable at all, it is because it was its duty to maintain a guard rail over the gully at the south end of the tile culvert
Again, even if a duty did rest upon the township to guard the gully, this does not mean that the guard rail had to be extended to the telephone pole where there was no danger of the character about which complaint is made. As we understand the facts a considerable part of the distance between the gully and the telephone pole was a smooth, natural surface. If the team backed upon the sidewalk near the telephone pole where there was no danger, and then continued to back along the sidewalk or over it to a place of danger at the south side of the pavement, such a contingency could not have been provided against by the township maintaining a guard rail between the traveled roadway and the pavement. Under these circumstances the accident would have happened just the same, because the team would have backed over the
The first assignment is based on the admission of evidence tending to show the condition at the point alleged to be dangerous some two years after the accident. This was too remote for evidential purposes and did not throw any light on the exact question before the jury. Standing alone it might not be deemed sufficient cause for reversal, but when the case is again tried this testimony should be excluded. While the instruction complained of in the • third assignment may be a correct statement of the law when the facts warrant its application, it did not take into account the many contingencies upon which the right to recover depends in the present case. For this reason it may have misled the jury. When points are submitted asking for definite instructions, they should be framed so as to make the law applicable to the particular facts of the case being tried. The mere fact that the roadway was of sufficient width for the usual and ordinary travel, would not relieve the township from maintaining guard rails at dangerous places, but it has something to do in determining whether under all the circumstances it was necessary to provide additional safeguards in the present case.
As to the question of contributory negligence, the general rule is that it is for the jury, when there is any evidence of this character to be considered. As the case
Judgment reversed and a venire facias de novo awarded.