9 Pa. Super. 553 | Pa. Super. Ct. | 1899
Opinion by
At the point where the plaintiff’s injury occurred the gutter on the left, going down the hill, was near to the wagon track, and at the side of the road on the right, five or six feet from the wagon track, but not, so far as the evidence shows, in the highway, was a quarry hole twelve or fifteen feet deep. This was guarded by a row of stones set on edge and projecting about half a foot above the ground. Some of the witnesses testified that the road slanted somewhat toward the quarry hole; that is, that one side was lower than the other. Christian Habecker, one of the plaintiffs, testified to the same effect, but on cross-examination he admitted that the right side was but very little lower than the other, and that, as to the grade from one side to the other, the road was “ reasonably level;” So far as the evidence shows, the road at this point was straight, or nearly so, but was steep and narrow.
Mrs. Habecker was familiar with the road. As she was driving down the hill, with Mrs. Good and two small children as companions, the left backing strap broke and, notwithstanding her efforts to prevent it, this caused the horse to veer to the right (or, as the plaintiff described it, “ the backing strap that was on pulled the horse over”), and finally to go over the row of stones into the quarry hole. The backing strap broke about forty or fifty feet above this point, and when it occurred, in order to lighten the load, the plaintiff called upon her companions to jump from the wagon. Mrs. Good and one of the children did so without injury. Just as the horse and wagon were about to go over the embankment the plaintiff also jumped out and fell upon the stones. The other child remained in the wagon.
It is claimed that the township was negligent in not providing a sufficient guard at the quarry hole. Granting this, was
It may be conceded for present purposes that if there had been a sufficiently strong guard rail this particular injury would not have happened. It is also clear that if the backing strap had not broken it would not have happened. Which was the proximate cause, and who, the court or the jury, was to determine that question? The rule is: “The injury must be the natural and jprobable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer, and likely to flow from his act: ” Hoag v. R. R. Co., 85 Pa. 293; Yoders v. Amwell Township, 172 Pa. 447; Bitting v. Maxatawny, 177 Pa. 213. It is supposable that if the question were submitted to a jury they would find, and perhaps would be justified in finding, that the supervisors might and ought to have foreseen, that, if the holdback strap broke as one was driving down this hill, the accident would be likely to happen that did happen in the present case. Was it their duty to make the road safe against the happening of such a contingency? Upon this general question as to the duty to maintain guard rails upon bridges and along dangerous places at the side of highways there are many adjudicated cases, most of which are reviewed in Yoders v. Amwell Township. It is sufficient to say that if the principle upon which that case was decided does not rule the present in the plaintiffs’ favor, none of the earlier cases do. There the bridge, which was without guard rails, had been crossed in safety, but fourteen feet beyond the horse became frightened and backed on the bridge and then off. It was held, that the omission to provide guard rails was the dominant and, therefore, the proximate, cause, and the fright of the horse was an incident. Without it, it is true, the dominating cause could not have operated to produce the injury, but as susceptibility to fright is a common and well-known trait of even well-trained horses, it was for the jury to say whether or not it was an element in the danger of neglecting to properly guard the sides of the bridge which the supervisors ought to have foreseen and provided against. The case of Bitting v. Maxatawny, 177 Pa. 213; 180 Pa. 357, was ruled
In Yoders v. Amwell Township Mr. Justice Dean says: “ Speculating on the doctrine of proximate and remote cause in
Judgment affirmed.