231 Pa. 497 | Pa. | 1911
Opinion by
The verdict was for the plaintiff and the defendant has appealed. The principal question involved is stated by appellant as follows: “Is a county liable for damages suffered through a failure of the part of the floor system of one of its bridges while there was being taken across it a load which, in respect of weight and otherwise, was different in character from the ordinary and usual travel over the highway in the locality of the bridge at the time it was built, but not different from such travel at the time of the accident, if the county commissioners properly maintained the bridge in accordance with its original design and plan of construction?”
The county bridge in question was erected prior to the year 1840 where a public road, which has since become a main throughfare, crossed a stream, about a mile and a half beyond what is now the city of Allentown. At that time Allentown was a mere village with rural surroundings;
On January 26, 1909, Chester Gehringer, the husband of the plaintiff, and two other men, were riding across the bridge on a motor truck containing a load of flour, the truck and load together weighing about 14,000 pounds; when they reached the third panel from the northern end that part of the structure suddenly gave way and precipitated the truck into the stream below, causing the plaintiff’s husband and one of his companions to be drowned. The accident was due to the giving way of the stringers. Upon investigation it was found that one of the broken stringers in the panel through which the motor truck fell contained dry rot, which was not visible from the outside.
The defendant’s testimony was to the effect that early in August, 1906, workmen employed in making repairs to the bridge had removed certain of the planks and tested the stringers, by pounding or jabbing them with a crowbar, a hatchet, or with an eight pound iron hammer, and that the commissioners had then substituted new stringers for all those which they deemed unsound; that in 1908, about five months before the accident, repairs were made
The defendant contended that, if at the time the bridge was built it was sufficiently strong to care for the then ordinary and usual travel over the highways in that locality, and if the county had maintained the structure in good condition according to its original carrying capacity and construction, the commissioners had performed their full duty; further, that, if the weight of the motor truck and its contents was greater than the load usually and ordinarily transported over the highways in the vicinity at the time the bridge was built, though not greater than the usual and ordinary loads at the time of the accident, the failure of the commissioners to strengthen the bridge in order to take care of such greater loads would not be negligence. But the trial judge refused so to charge. On the contrary he instructed the jury that the legislature had recognized the right to operate motor vehicles on the roads of the state, and that when such vehicles, of the description and weight in ordinary use in a section of the country, have been running for several years, it becomes the duty of the county authorities to strengthen the bridges so as to withstand the increased strain and provide against injuries from such ordinary use of the highways. It was left to the jury to say what was the ordinary use of the roads in the vicinity of the bridge in this case, the court adding: “Had the carrying of such loads as this auto had on that day become ordinary and usual? If it had then the duty of the commissioners was to provide a bridge sufficient to carry it. When I say provide a bridge, I do not mean a new bridge. The commissioners are not charged with the rebuilding of bridges . . . .; all that they are charged with is the maintenance of the bridge and all that they could be charged with here is that if the use of the auto trucks carrying the weight this one did, and with the formation of the body this one had, I mean
In the opinion refusing a new trial the learned president judge of the court below says: “The trial . . . . established the fact that auto trucks of the weight and general character of the one in which the decedent was at the time of the accident were in general use in the locality of the bridge .... An open bridge .... bears the imperative duty on the authorities charged with its maintenance to keep it in such a condition that the public may safely use it. If this involves a strengthening of the floor, then it becomes the duty .... to strengthen it. They (the commissioners) may not build a substantially new bridge, but .... they may make repairs and strengthen an old structure so long as the general character of the bridge remains the same. In some states the courts have held that the authorities are only required to maintain bridges of the same style and character of the original bridge,. and adequate for the traffic then existing. To this view I cannot agree. To hold that the county commissioners may, upon an inspection of a bridge .... remove the floor timbers which were suitable for the demands of travel sixty years ago, but totally inadequate for present public demands, and replace them with tim
“In this state the duty (to repair) is statutory, and therefore we must look to the statute for its nature and extent: ” Rapho v. Moore, 68 Pa. 404. The Act of June 13, 1836, P. L. 551, required public roads, including bridges, to be “constantly kept in repair.” The Act of April 13, 1843, P. L. 221, provides: “It shall be the duty of the county commissioners .... to repair all bridges erected by the county, and to pay the expenses of such repairs out of the county treasury.” The Act of March 30, 1905, P. L. 81, makes a precisely similar provision as to “All county bridges heretofore erected or to be hereafter erected.” Although -counties are not by these statutes expressly made liable for injuries resulting from neglect properly to maintain their bridges, yet we have uniformly and long held that a mandate to repair carries with it a responsibility, which, if neglected, may give rise to such a liability; and the thought running through our cases is that these statutes fix an imperative duty upon the counties properly to repair a bridge, which includes the obligation to maintain it, “so as to protect against injuries by a reasonable, proper and probable use thereof in view of the surrounding circumstances, such as the extent, kind and nature of the travel, and business on the road of which it forms a part:” McCormick v. Washington Township, 112 Pa. 185.
In Shadier v. Blair County, 136 Pa. 488, where a heavy traction engine broke through a county bridge, in entering
Lehigh County v. Hoffort, 116 Pa. 119, relied upon by the appellant, does not in any sense rule the present case. There it was “not pretended that the injuries complained of resulted from any want of care or defect in the bridge;” and in reading the opinion it must be kept in mind that the neglect alleged in that case was not the failure to perform an absolute duty, but simply the non-exercise of a discretionary power. The appellant recognizes the existence of such a distinction, yet strongly urges that the principle of that case should be applied here, contending that the failure properly to strengthen the bridge should not be viewed as more than an omission on the part of the commissioners to exercise judgment, or, at the most, the exercise of bad judgment. It argues that the question of the time for, and the manner of, strengthening the structure would, of necessity, be discretionary with the county officials, and that a jury cannot be permitted to substitute their judgment for that of the properly constituted authorities. In matters of this kind there is always a transition period. But here the evidence was sufficient to satisfy the mind of the trial judge that such period had passed some time before the date of the accident, and it was adequate to sustain the conclusion that the use of the roads by vehicles of the character of the motor truck in question had become so usual in the vicinity that the commissioners must have had knowledge of that fact for a sufficient length of time to have acted thereon and made the necessary repairs properly to strengthen the bridge. Under these circumstances the case was for the jury.
In a sense, exercise of judgment is required in making any repairs, but it is generally held that the duty of maintaining a public structure so as to prevent danger, is ministerial in its nature, and that neglect properly to perform such an obligation will give rise to an action for damages. How far this rule will apply in a case where county
The seventh specification of error relates to the affirmance of a point to the effect that it was the duty of the commissioners, upon being informed that a county bridge was out of repair, to examine it thoroughly, and to make such repairs as would render it perfectly safe for ordinary travel, or to close it up to prevent the public from using it. The use of the phrase "perfectly safe” states the law somewhat strongly for the plaintiff, but we cannot say that it was without authority. In Humphreys v. Armstrong County, 56 Pa. 204, we said: "It was the duty of the commissioners to have examined the bridge thoroughly .... and to make a thorough repair so as to render the bridge perfectly safe, or to close it up so as to prevent the public using a dangerous part of the highway.” It is to be observed that the instruction complained of relates to the duty of the commissioners upon "being informed” that a bridge is out of repair. We cannot conceive, as contended by the appellant, that the jury could have understood the point to mean that it was the imperative duty of the commissioners to find every existing defect, latent or otherwise, that might possibly detract from the perfect safety of the bridge; particularly, when we consider that the trial judge repeatedly told the
The fourth specification complains of the refusal of a long point for charge requested by the defendant covering the duty of inspection and repairs to the bridge, and ending with the direction that if the facts therein set forth were believed, there could be no recovery in the case “even if dry rot existed in one or more of the stringers which were in the panel through which the auto broke.” The answer was: ‘ ‘ Refused. As to whether the inspection was sufficient. Not read to jury.” In this we see no error. The question of the sufficiency of the inspections was for the jury to decide upon the evidence, guided by the impression which the witnesses made upon them as to the sincerity and thoroughness of the tests described. “ The real question was whether the tests used were such as the ordinarily prudent man would have adopted, and the point as drawn practically took that matter from the jury; ” whereas in the case cited by the appellant, McCormick v. Washington Township, 112 Pa. 185, it was submitted. The assignment is overrruled.
The sixth and eighth specifications complained of the affirmance of two requests for charge to the effect that “the omission to search for and discover latent defects resulting from the decay of material used in the bridge is evidence of negligence properly chargeable to those whose duty it is to repair,” and “when a bridge has served for the time timbers are expected to last, and it may be reasonably expected that decay has set in, it is negligence to omit all proper precautions to ascertain its condition.” These assignments should be considered in connection with the
. The error assigned in the fifth and last specification was the refusal to give binding instructions for the defendant. ■ The appellant contends that the rule that a county acting as a public agency is not liable for the negligence of its officers, should have been applied to the facts in this case. The authorities already cited show that the obligation to repair and properly maintain county bridges is a positive statutory duty imposed upon the commissioners, the fulfillment of which the public have a right to demand; in such instances the rule invoked by the appellant does not apply. Therefore, since the evidence was sufficient to justify the submission of the issues involved, the case could not have been taken from the jury. This assignment is likewise overruled.
The judgment is affirmed.