Appeal, No. 314 | Pa. | May 21, 1900
Opinion by
On November 15, 1897, the plaintiff, with her sister, was driving in a one-horse buggy from the village of Birmingham, Huntingdon county, to the bororigh of Tyrone, Blair county, the distance being about three miles. The road, for the greater part, is in Snyder township, Blair county; it is a much traveled one, and is broad, smooth, and kept in good repair; for part of the distance, it is a side cut, about fifteen feet above the Juniata river, and the descent to the river is very abrupt; there was no guard rail or other protection on the side of the cut next the river; in improving the road, the contractor had placed a pile of sewer pipe on the side of it next the mountain; how long the pipe had been there did not appear; the horse was a safe one for driving purposes, but, notwithstanding, it shied at the sSwer pipe, became uncontrollable, and backed the buggy with its occupants off the road into the river; the buggy was demolished, the horse falling on it; plaintiff narrowly escaped drowning, and suffered serious injuries. She brought suit for damages against defendant, averring negligence in not maintaining a guard rail or other barrier at the point of the accident.
The court submitted the evidence to the jury, instructing them, that if they found, under the facts, the supervisors were negligent in not placing a guard rail or barrier at that point, and the absence of it was the proximate cause o'f the accident, the defendant was answerable in damages, unless plaintiff by her ignorant or negligent driving contributed to the result. The verdict was for plaintiff, and we have this appeal by de
It may be conceded that there was no proof of notice to defendant, actual or constructive, that the sewer pipe had been placed on the highway. That may be treated as a mere incident of the cause, the same as the blowing of a leaf, or the casting of a shadow upon the road, at either of which a horse might have taken fright. The fact, however, remains that any horse which took fright at that particular point, might easily and probably would, throw the vehicle over the bank into the river below, for the roadway was only ten to twelve feet wide; at the right was the mountain side, at the left the precipitous descent to the river; it was either that narrow roadway or over the bank into the river, for the terror stricken animal. Did defendant neglect a duty to the traveling public when it left the road unguarded at that point? The jury has found as a fact that it was negligent, and that such negligence was the proximate cause of the injury. Appellant argues it was the duty of the court to determine, that the pile of sewer pipe was or was not the proximate cause of the accident. Without going into a discussion of that question, and hunting for the vague line which separates the functions of the court from those of the jury, on the subject of remote and proximate cause, we only remark that defendant could not have been injured by the court’s action. There was ample evidence of defendant’s negligence, and that that negligence was the proximate cause of the accident. It cannot matter to appellant, whether answerability is found by the court or jury, so long as the finding in either case ought to be against it. As to what is the test of negligence of a municipality, with reference to its roads and highways, we have passed on the question so often within the last twenty years, that we shall not, further than is absolutely necessary, repeat our opinion. Was this consequence
In appellant’s history of the case it is stated, that this “ is one of the most frequently used highways in that part of the state.” It follows that increasing travel increases the danger and the risk of accident. Twenty-five horses and vehicles might have passed this point daily for twenty years with but one accident. Multiply this by four, making a hundred going-over the same road daily, then there will probably be an accident on an average of every five years. We assume, with appellant, that at an earlier day, when the country was sparsely settled and travel very light, the duty might not have been obvious; but conditions have wholly changed; now, but very few country roads are so much traveled as this one. Why has the roadbed undergone so great improvement? Formerly, it was a common dirt road, deep in dust one half the year, and in mud the other half; now, it is a smooth, macadamized highway. The increase of travel demanded the improvement of the highway, and the township only did its duty in improving it; but there was no corresponding protection to the traveler at this perilous point. Since the accident, at a slight cost, the guard rail has been erected; the danger is one which ordinary foresight should have apprehended, yet it was not guarded against, until a serious accident demonstrated its existence. This is negligence. The measure of danger is the measure of duty. If the city of Philadelphia left unguarded a single dangerous highway, as was this one, with its more than a million of population, no one would question its negligence; it would be called criminal negligence. And while the township of Snyder is held up to no such degree of care in the case of a country road, yet the duty of vigilance rises with the increased travel upon such a road as this one.
Much stress is laid by appellant on Heister v. Fawn Township, 189 Pa. 253" court="Pa." date_filed="1899-01-02" href="https://app.midpage.ai/document/heister-v-fawn-township-6245090?utm_source=webapp" opinion_id="6245090">189 Pa. 253, decided last year. It was not intended in that case to touch any principle announced in the numerous authorities which preceded it. There the driver of-a vehicle deliberately drove up to a cow lying upon a roadway twelve feet wide, and in full sight for 350 feet ; as he came near she suddenly rose up, the horse took fright and plunged over the
“ If the township was bound to anticipate the conjunction of circumstances which led to the .accident, while they were in. the future, and was negligent in not providing against their possible happening, the plaintiff must have been at least equally negligent in not guarding against them when they were present or imminent.”
If instead of an immovable pile of sewer pipe close up to the right-hand side of the road, this horse had taken fright at a cow, which immediately rose up before him in the middle of the road, and which the driver had in full view for 350 feet, the case would have been in point, but it has no application to the facts before us.
We hold there was ample evidence from which the jury could find the fact of negligence, and assuming that fact, then that negligence was the proximate cause of the accident.
As to .contributory negligence on part of plaintiff, that was so clearly a question for the jury, that we shall not waste time in discussing the assignment of error.
The judgment is affirmed.