Coulter v. Pine Township, Appeal, No. 160

Appeal, No. 160 | Pa. | Nov 5, 1894

Opinion by

Mb. Justice Mitchell,

This case is governed by Clulow v. McClelland, 151 Pa. 583" court="Pa." date_filed="1892-11-07" href="https://app.midpage.ai/document/clulow-v-mcclelland-6241090?utm_source=webapp" opinion_id="6241090">151 Pa. 583, but it is an error to suppose that that case, or Com. v. Allen, 148 Pa. 358" court="Pa." date_filed="1892-03-28" href="https://app.midpage.ai/document/commonwealth-v-allen-6240717?utm_source=webapp" opinion_id="6240717">148 Pa. 358, decided as matter of law that the moving of traction engines for steam threshing and other purposes, over roads or bridges, was at that time an extraordinary or unlawful use of the public highways. On the contrary, the non-suit in Clulow v. McClelland was sustained expressly on the ground that “ plaintiffs themselves testified that they knew that the machine was a good deal heavier than the ordinary travel in the neighborhood, .... that in fact they had examined this bridge, taking off a plank to do so, and considered it safe.” In other words they were aware of the risk and voluntarily accepted it, while as to the defendant it was said, “ It was not negligence in the township not to know what an inspection by the plaintiffs failed to disclose.” The point of that case therefore is that the extraordinary use of the highway was clear from plaintiff’s own evidence, and therefore there was no ground on which the township could be held .liable for the accident. To make it still more clear that this was the extent of the decision, the Chief Justice added a warning that “when the use of steam engines for threshing, etc., becomes so general that their transportation over the roads amounts to an ordinary use of them, it may be necessary to strengthen the bridges so as to withstand the increased strain.” This generality of use would, of course, ordinarily be a question for the jury.

How far, and under what circumstances it may become the duty of townships to strengthen, for this purpose alone, bridges which ’are otherwise safe and in good repair, we need not discuss until the question is really before us. In the present case it appeared in the evidence that the bridge had been altered and reconstructed in 1888, and the court instructed the jury that if it was properly constructed with reference to ordinary travel at that time, any intervening defect would have to be brought to the knowledge of the supervisors, but that if the timbers had been in use as long as such timbers usually last, or longer, then length of- time would be equivalent to knowledge. This was in effect an instruction that if the bridge was properly constructed and maintained with reference to ordinary travel in 1888, the township would not be liable though the moving of steam threshers had in the meantime become an ordinary use of the highway. This was at least as favorable to defendant as it was entitled to ask. On the main issue the jury were told, “ this case turns upon the question whether or not traction engines had become a usual and ordinary mode of travel when the supervisors reconstructed the bridge in June 1888.” It was a question for the jury and was thus submitted in exact accord with the principles of Clulow v. McClelland. The difference in result was due to the difference in the facts as appearing there in plaintiff’s own evidence, and as found here by the jury.

The assignment of error to the withdrawal of the evidence as to the insurance on the life of Joseph Coulter cannot be sustained. There was no basis on which such evidence could be admitted. Money paid on a policy of insurance is not the pecuniary value of the life, but of the premiums paid. The evidence was entirely irrelevant to the liability of defendant, or its amount: No. Penn. R. R. Co. v. Kirk, 90 Pa. 15" court="Pa." date_filed="1879-05-07" href="https://app.midpage.ai/document/north-pennsylvania-railroad-v-kirk-6236110?utm_source=webapp" opinion_id="6236110">90 Pa. 15. Appellant cites the authority of Lord Campbell from Sedgwick on Damages, but the eighth edition of that work, sec. 67, discusses the subject more fully and concludes thus, “ The amount received by the plaintiff on an insurance policy cannot be shown to reduce the damages. . . . When an action is brought under a statute for damages causing death the rule in England is different. ... In the United States however the ordinary rule is followed, and the amount recovered is not reduced by the amount of insurance money,” citing Sherlock v. Alling, 44 Ind. 184" court="Ind." date_filed="1873-11-15" href="https://app.midpage.ai/document/sherlock-v-alling-7039770?utm_source=webapp" opinion_id="7039770">44 Ind. 184, 199; Althorf v. Wolfe, 22 N.Y. 355" court="NY" date_filed="1860-12-05" href="https://app.midpage.ai/document/althorf-v--wolfe-3602894?utm_source=webapp" opinion_id="3602894">22 N. Y. 355; Terry v. Jewett, 17 Hun, 395, and Harding v. Townshend, 43 Vt. 536" court="Vt." date_filed="1871-02-15" href="https://app.midpage.ai/document/harding-v-town-of-townsend-6579246?utm_source=webapp" opinion_id="6579246">43 Vt. 536.

Judgment affirmed.