No. 398 | Pa. | Oct 6, 1890
Opinion,
On behalf of plaintiff, the court was requested to charge, as recited in the first specification, that, if the place where the accident occurred was a part of the highway, and “ was so dangerous, by reason of its proximity to a precipice, that common prudence required extra precaution in order to secure safety to travelers, the township was bound to use such precaution, and the omission to do so was negligence.” The evidence, tending to prove the facts suggested in that proposition, was sufficient to have warranted its affirmance; but, as complained of in the fifth specification, the learned judge virtually withdrew every question of fact from the jury, and directed them to render a verdict for defendant. In that we think there was error: Corbalis v. Newberry Tp., 132 Pa. 9" court="Pa." date_filed="1890-01-06" href="https://app.midpage.ai/document/corbalis-v-township-of-newberry-6239719?utm_source=webapp" opinion_id="6239719">132 Pa. 9. In that case the evidence tended to prove a state of facts similar,
The learned judge also erred in saying that, so far as the roadway from the end of Brown street to the bridge is concerned, there is no evidence to show that it was of any greater width than the bridge itself. The evidence tended to show that Brown street formerly terminated in a public road, running up the bank of Jacob’s creek on the Fayette county side, and crossing the same a short distance above the present bridge; that the bridge, which is substantially in the line of Brown street extended, was built there because, in 1870 or 1871, said public road was appropriated by the Mt. Pleasant & Broadford Railroad Company, and the bridge, together with the extension of Brown street across the railroad to connect therewith, was substituted for the former public road and crossing. One of the witnesses, who was president of the railroad company when the road was constructed, testified that the bridge was built, under a contract with the company, in order that the people might cross over to the other road connecting therewith on the opposite side of the creek; that, when the bridge was completed, it “ was taken off the hands of the railroad company” by the commissioners of Fayette county, and thereafter the company had nothing more to do with it. It was also shown that the approach to the bridge was filled up so as to put it in proper condition for public travel. One of the supervisors for 1882 testified: “ I leveled the ground between the bridge and railroad.....The bridge is now about on a level with the railroad, or probably a little higher than the railroad.” From this and other evidence, to which special reference is unnecessary, the jury would have been warranted in finding that the bridge and extension of Brown street, to connect with it, were intended to supply the former public road and crossing, and were accepted as a substitute therefor by the county commissioners; in other words, that the railroad company supplied, as it was bound to do, a public highway in lieu of the one it appropriated for the bed of its road. If that be so, it was the duty of the township authorities to see that the substituted highway, including the bridge and approach to
The case depended on questions of fact presented by the evidence, and those questions were exclusively for the determination of the jury. For that purpose the evidence should have been submitted to them with proper instructions. The specifications of error are sustained.
Judgment reversed, and a venire facias de novo awarded.