5 Pa. Super. 404 | Pa. Super. Ct. | 1897
Opinion by
The injury sustained by the appellee was occasioned by the overturning of a’wagon in which she and her husband were riding on Clinton avenue in the borough of Oakdale on October 21, 1895. At the point where the accident happened the road follows the valley of the north branch of Robinson’s Run, and by the action of the water of the stream upon the road its width had been reduced from thirty-three feet to less than twenty-five. It became necessary to erect a retaining wall of stone along the bank in order to widen and protect the street. In the curve of the street near the footway a water plug was located for the use of the borough. There was evidence that the building of the retaining wall was. let by contract to Samuel Gamble, and that at the time of the accident it was being constructed by him. On the day of the accident C. H. Hookey and his wife, according to Mr. Hookey’s testimony left home between two and three o’clock in the afternoon for a drive. They went out to the North Branch by the Pittsburg and Steubenville Pike and returned by the North Branch road or Clinton avenue, reaching the place of the accident between seven and eight o’clock in the evening. According to the testimony of Mrs. Hookey it was so dark she could not see her hand before her face. In making the repairs, stone had been placed along the side of the street opposite the fire plug, extending along the side of the road about one hundred and fifty feet. The space left between the stone pile and the fire .plug was about eight feet; no light or other warning of danger had been provided at the place where tbe stones were piled. The testimony of Hookey discloses the fact that he had been up and down the road a great many times for four years prior to the accident. He also testified that he was along the road when they were grading it up, but not after they commenced putting in the stone. In describing the accident Hookey’s testimony is as follows: “ Q. Tell the jury how the
On cross-examination the witness said: “ Q. When did you first notice the pile of stones ? A. When I was coming driving in there. Q. Driving at a trot? A. Yes, sir, my horse was trotting. Q. Were you driving at a trot when you hit.the box? A.- I was. Q. And did you consider that place dangerous when you were driving along there ? A. I didn’t consider it dangerous, very dangerous. As long as I wasn’t onto anything I didn’t, and everybody else drives there. I didn’t suppose the road was closed up that close. Q. You saw the pile of stone out in the middle of the street ? A. I saw it when I started in above. Q. And you saw them all along the side ? A. Yes,
Mrs. Hookey testified as follows: “ Q. When you came to the place where the accident occurred, what time in the evening was it? A. It was dark. Q. It was after dark? A. Yes, sir, you couldn’t see your hand in front of you.”
On cross-examination: “ Q. You said you were driving at the ordinary rate ? A. Yes, sir. Q. Going at a trot ? A. Yes, sir, just as our horse always goes.”
In a space but eight feet wide between a stone pile and a water plug projecting two feet above the ground there is evident danger in driving, at night in the absence of a light placed at the point of danger. It was negligence on the part of the person in charge of the work of repairing the street to obstruct the street with a pile of stone without a signal light to warn travelers of the danger.
It is true that the right of the public to the use of the highway is subordinate to the right of the public authorities to make repairs for the public benefit: Township v. Anderson, 114 Pa. 643.. It is also the rule that the road should have been closed by the authorities or sufficient warning of the danger given : Humphreys v. Armstrong Co., 56 Pa. 204; Born v. Plank Road Co., 101 Pa. 334.
The road was open and used by the public, and under the evidence it cannot be said that it was a case of using a road known by the plaintiff to be dangerous. The evidence shows that the plaintiff did not know of the stone pile till suddenly confronted with the obstacle at the time, of the accident. The question presented, therefore, is whether under the evidence the conduct of the plaintiff, who was driving the horse, was such as to make it the duty of the court to declare his conduct negligence as matter of law, or whether it was the duty of the court to submit that question to the jury under proper instructions. Could the court declare that it was negligence per se for the plaintiff to drive his horse at a trot at the .time of the accident, or was it for the. jury under proper instructions to determine whether the plaintiff’s conduct, under all the circumstances, was that of an ordinarily prudent man, and that he exercised ordinary care ?
, Suddenly, in the darkness, while driving his horse at a trot on a public highway, where he had a right to be, he was confronted
Should he have stopped his horse when he first saw the pile of stones ? Was he negligent in trotting his horse till he struck the fire plug? Under tbe circumstances of the case these were questions for the jury to determine and not for the court.
“ If a man has got himself, without negligence, into a position of danger, he is not responsible if he makes a mistake of judgment in getting out. A man placed under such circumstances, if he uses his judgment honestly, is not responsible, although he might have done better, if he had acted differently: ” R. R. Co. v. Werner, 89 Pa. 59.
“ A plaintiff placed in sudden peril by defendant’s negligence is not to be held liable for a mistake of judgment in not using the best possible means of escape : ” Baker v. North East Borough, 151 Pa. 234.
“ The plaintiff, while driving along a plank road, abreast with another wagon, at the rate of about twelve miles an hour, between nine and ten o’clock on a dark night, was injured by running into a pile of stones lying in the track of the road. The stones were to be used in erecting a building and had been lying there several days; there was no light or signal to warn travelers. The stones were about a quarter of a mile from a toll-house but there was no evidence that the company’s officers had actual knowledge of their being there. In an action against the plank road company to recover damages, the court entered a nonsuit on the grounds that there was no evidence of negligence, on the part of the defendant and that the plaintiff was guilty of contributory negligence. Held, to be error. The questions of
“ To drive at the rate of twelve or fifteen miles an hour is not negligence per se. To determine whether such speed is within or without the measure of reasonable care, the width of the road, its condition, the number of persons and vehicles thereon at the time, and all other circumstances must be considered. The road may be inside the limits of a city corporation, and in fact a country road. It may be known as a much used thoroughfare, in good repair, or as one that is rough and perilous. The degree of care shifts with the ever shifting circumstances, and whether driving at a certain rate of speed is negligence can alone be determined by the jury:” Born v. Plank Road Co., 101 Pa. 334. ” •
We are of the opinion that under the evidence it would have been error to instruct the jury that the plaintiffs were guilty of contributory negligence and therefore not entitled to recover. It was emphatically a case of sudden emergency, where in attempting to escape one danger another presented itself calling for the quick exercise of judgment, and whether Mr. Hookey, in driving his horse on the occasion exercised the ordinary judgment of a prudent man confronted with a danger that he had no right to expect, or whether he was negligent, was for the jury to decide. To declare him guilty of negligence because he drove his horse at a trot after dark or even at a gait of twelve miles an hour would be error, and whether he brought his horse from a trot to a walk as quickly as he should have done after he first saw the stone pile, was properly submitted to the jury.
In Ginther v. The Borough of Yorkville, 3 Pa. Superior Ct. 403, in an opinion by our Brother Smith, this court held that “ a municipality is not liable for the negligent performance of a contract by an independent contractor resulting in injury to the property of a citizen, even if the work is done under the direction of an official .authorized to inspect it, who is vested with all power necessary to secure compliance with the contract, payment being conditioned on his approval of the work.”
Under this authority the very important question is presented .in this case, whether, in view of the uncontradicted testimony, the appellant was liable for the injury sustained by the appellees.
The testimony was not questioned, and when the case was submitted it stood uncontradicted. In the second point of the defendant the court was asked to charge the jury as follows : “ That the uncontradicted evidence in the case shows that the obstruction in the road consisted of certain stones which drove the plaintiffs to the right, as they complained, which were placed there by a contractor who had an independent contract to construct the retaining wall at the place of the accident; that the said contractor was doing the work at a compensation per perch, finding the materials and doing the work; that the borough had or retained no supervision over the work of its management, and under this condition of affairs the defendant is not liable for any injury the plaintiffs may have suffered.” The court answered “ Tins point is refused.”
The answer of the court was of vital importance to the defendant’s case. If the negligent act of blocking one half of the roadway with stones, and leaving them without a light or other .means to warn travelers at night of the danger, was the work of this contractor, over whose acts the borough retained and had no control, why should it be called upon to answer for the contractor’s negligence ? The question was not called to the attention of the jury by the trial judge in his charge, except in his unexplained answer to the point. What construction the jury placed upon the answer is unknown. If he meant to have them understand that the credibility of the witness was for them it was his duty to so instruct them.- We understand that he meant by his unqualified answer that, although it is true and uncontradicted that Samuel Gamble had an independent con
The burden was upon the plaintiff to prove negligence on the part of the defendant. It was negligence, as before stated, to leave the stone piled in the roadway without something to warn travelers at night of the danger. But the uncontradicted testimony shows that they were placed there by the contractor.
In a long line of cases involving the question of negligence the rule is established in Pennsylvania that where the facts are undisputed it is the duty of the court to pass upon the question of the defendant’s negligence. There is not a scintilla of evidence to rebut the plain statement of the contractor, and he who caused the injury should be held liable for the damages resulting from his act;' for which he alone, according to his own testimony, was responsible. There is no good reason why the
It may be said that this is an obstruction in a street, and a municipality cannot escape liability by showing that the obstruction was placed there by an independent contractor. It is said by Elliott in his work on Roads and Streets at page 467 : “If a municipality knowingly permits a dangerous excavation to negligently remain open and unguarded so as to constitute a defect in the street, rendering it unsafe for travel, the municipality cannot escape liability''to one injured thereby,.on the ground that the work had been let to an independent contractor.” The learned author cites numerous authorities in support of the text, but cites Painter v. The Mayor, 46 Pa. 213, as holding a different doctrine. The rule laid down by Justice Steong in Painter v. The Mayor, etc., of Pittsburg, supra, has been followed by our Supreme Court in an unbroken line of decisions. In that case the excavation had been made in the street by one who had an independent contract with the city to do the work, and it was held that, “ a municipal corporation is not responsible for an injury occasioned by the neglect of contractors with it, or of their agents and servants; the remedy for the injury is against the contractors alone.” The reason for the rule is that the principle of respondeat superior applies to the contractor alone, and in such case there cannot be two superiors severally responsible. To the same effect are Reed v. Allegheny City, 79 Pa. 300, Erie v. Caulkins, 85 Pa. 247, Susquehanna Depot v. Simmons, 112 Pa. 384, Improvement Co. v. Rhoads, 116 Pa. 377, Trego v. Hoheybrook Boro., 160 Pa. 76, and Eby v. Lebanon Co., 166 Pa. 632. In the above cases the actions were for injuries caused by obstructions in the highway. And in each case it was held that if the obstruction was placed in the highway by an independent contractor, over whom the municipality had no control, no action could be maintained against the latter. Notwithstanding respectable authorities to the contrary such are the decisions of our Supreme Court, which we are bound to follow. In the Borough of Susquehanna Depot v. Simmons,supra, it is held: 1. “A municipal corporation, granting to one a license for a purpose proper and lawful, in this case to lay and provide water pipe in the street, is not liable to one injured by reason of the misuse or abuse of that license, whether the
In Improvement Co. v. Rhoads, supra, it was said by Mr. Justice Clark: : “ The rule that in actions for negligence municipal corporations may in certain cases cast the responsibility upon an independent contractor whose negligence caused the injury has never been extended to corporations for profit.”
In Trego v. Honeybrook Borough, supra, it is said: “ It is a mistake to assume, as appears to have been done by defendant in this case, that property owners, who- — by the direction of the borough authorities and in obedience to the requirements of an ordinance for that purpose — are engaged in paving and curbing the sidewalk in front of their respective properties, are in any proper sense, contractors exercising an independent employmént over which said authorities have no control. The well-recognized principle of Painter v. Mayor, 46 Pa. 213, Reed v. Allegheny City, 79 Pa. 300, and that line of authorities, has no application in such cases.”
The burden was upon the defendant to establish the fact that the injury was caused by the act of an independent contractor, and it may be justly claimed that the credibility of the defendant’s witness was for the jury. Therefore this case must go back for another trial, in order that the jury may be fully instructed on this important question. We do not think the unexplained answer to the point a sufficient exposition of this important feature of the case.
The second assignment of error is sustained, the third is overruled, the judgment is reversed and a venire facias de novo awarded.