208 Pa. 492 | Pa. | 1904
Opinion by
The stress of the appellant’s argument is in the contention that the city is not bound to keep its rural highways in safe travelable condition for their full legal width and as the body of the deceased was found outside of the “ wrought portion ” of the Welsh road, lie must be assumed to have gone there at his own risk. The first six and the eighth assignments of error are based on this argument. But the learned judge could not have charged the jury on this view as it assumed facts which were not conceded. By the “ wrought portion ” of the road, appellant means a space of sixteen feet in width in the middle of the road which was laid with what appears to have been an unusually good macadam pavement. • But it was in evidence that on each side of this paved strip was a smooth surface of sod or earth at the same level but inclining gradually to the sides and apparently intended for the same use, in fact what is commonly known in this part of the country as a “ summer road ” used by many travelers in good weather in preference to the macadamized stone. Moreover it is not conceded that the locality was clearly rural and the road at that point a mere improved country road. All of these matters were proper for the consideration of the jury in the whole case, and could not have been safely assumed by the court as admitted or proved beyond controversy. .
But none of these cases give any support to the contention that the city, or even a borough or township may with impunity leave a highly dangerous and insidious obstruction, such as a heavily charged and exposed electric wire, on any part of a public highway, or so near it that a traveler accidentally or intentionally deviating a few feet from the beaten track, may encounter it to the risk of life. On the contrary it has been uniformly held that those using this new and dangerous agent are bound to the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to the wires, and liable to come, accidentally or otherwise, in contact with them: Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540.
The fact that the wires are owned or used by the city
The only remaining question relates to the admission of the Carlisle Mortality Tables, as evidence of the expectation of life of plaintiff’s husband. Those tables have been held admissible and that question is not now open: Steinbrunner v. Pittsburg, etc., Ry. Co., 146 Pa. 504; Campbell v. York, 172 Pa. 205; Kerrigan v. Penna. R. R. Co., 194 Pa. 98. They are not conclusive and are far from satisfactory evidence but are admitted from necessity because they are the best guide attainable to the establishment of a material but necessarily uncertain fact, the natural duration of the individual life which has been terminated by the injury in controversy. Uncertain and unsatisfactory as any test drawn from the general duration of life must be when applied to an individual case, it is better than the uninstructed guess of a jury. But the restrictions under which such testimony should be received and the cautions with which it should be submitted to the jury are clearly and authoritatively set forth by our Brother Dean in Kerrigan v. R. R. Co. supra, and see also McKenna v. Citizens’ Nat. Gas Co., 198 Pa. 31.
Appellant’s assignment of error however is not founded on the simple admission of the Carlisle tables, but on their admission as evidence of the expectation of life of plaintiff’s husband, without accompanying proof of plaintiff’s own age and expectation. It is argued that while the husband might have lived a certain number of years, yet the wife might not, and therefore her damages ought to be limited by the double contingency of their joint lives. The point is new, and the fact that it has not been raised before in any of the very numerous cases where it would have been appropriate if sound, would seem to indicate that it has not appeared tenable to the professional mind. We are of this opinion. The life of the husband having been terminated by the accident, its probable duration in the regular course of nature must, as already said, be approximated by the best evidence attainable, even though that leads only to conjecture. But the widow, plaintiff, is living and is entitled now to compensation for what she has lost by her
Appellant cites Baltimore, etc,, Turnpike Road v. State, 71 Md. 573,
Judgment affirmed.