145 Pa. 220 | Pennsylvania Court of Common Pleas, Dauphin County | 1892
Lead Opinion
Opinion,
The learned judge below laid down very clearly and accurately the general rules applicable to cases of accidents through alleged defects in the public roads, and the only substantial question before us is whether, on the admitted or undisputed facts, there was sufficient evidence of negligence on the part of defendants to go to the jury.
The rule as to excavations, or other sources of danger by an owner of land in the vicinity of a public road, was stated in Gramlich v. Wurst, 86 Pa. 74, and Gillespie v. McGowan, 100 Pa. 144, and need not be enlarged upon here. On the admitted facts of this case, the defendants would not have been liable merely as owners of the pond. But defendants, having altered the road by agreement or license from the turnpike company, through the receiver, assumed the duty of the company in that regard, and the ease must be considered in the light of the dutjr of the company if it had made the change itself.
The precise limits of liability where the element of an uni’uly or frightened horse enters into the causes of an accident on a public highway, have been the subject of controversy and some difficulty. It is conceded that our cases hold the township authorities to a more exacting rule than obtains in some other states, but none of them go so far as to say that they must make the roads safe for runaway horses. The subject was carefully considered in the recent case of Jackson Tp. v. Wagner, 127 Pa. 184, where our Brother Williams said:
The criterion here laid down was reaffirmed in the same case, 183 Pa. 61, and must be considered the settled law.
Tested by this rule, it is clear that there was no sufficient evidence of negligence to take this case to the jury. There was no defect in the roadbed. It was level, and safe for ordinary travel. The edge of the pond was fifteen feet outside the line of the turnpike, and twenty-seven feet from the traveled part of the road, which was to some extent separated and distinguished from the part adjoining the pond by a line of telegraph poles. The cause of the horse’s fright is unknown, but there was no evidence that it was from anything on or connected with the road or with the pond. Apart from the fright of the horse, there was nothing to show any danger to travel from the existence of the pond and the absence of a fence between it and the road. It is in this respect that the present differs from the line of cases of which Plymouth Tp. v. Graver, 125 Pa. 24, is the exemplar. There, as here, the roadbed was
Judgment reversed.
Dissenting Opinion
dissenting:
The facts necessary to an understanding of the questions involved in this contention are so fully presented in the charge of the court that a brief reference to them will be sufficient.
It appears that a small stream, running through defendants’ land, several feet below the general level of the turnpike on which plaintiff was driving, formerly crossed the road at grade, near the point where the accident occurred. About fifteen years ago, the then owner of the land constructed an embankment or dam about eight feet high across the stream, on the northerly side of the turnpike and about fifteen feet therefrom, for the purpose of collecting the water, and thus forming an ice pond. On the south side of the road there was an ice house, and on the north a fence separating the road from the dam. While the embankment or dam remained thus about eight feet higher than the road, and separated from it by the fence, an accident, such as is the subject of this controversy, was practically impossible. In 1888, after defendants purchased the land, they obtained permission from the sequestrator of the turnpike company to raise the grade of the road at the point referred to, and in pursuance thereof they filled in about eight feet, turn-piked the new surface, constructed a culvert for the subterranean passage of the stream, and thus raised the road and their own land between it and the dam, to the level of the latter. The fence was of course removed. It was never rebuilt, nor was there any guard-rail put upon that side of the road. On the opposite side, the width of the road was somewhat contracted by the slope of the filling in, etc. In brief, the situation at the time of the accident was a somewhat narrower roadway
The facts above outlined were either undisputed, or supported by evidence from which a jury would have no difficulty in finding them.
In March,1889, while plaintiff was'driving on the turnpike, at the point above described, his horse suddenly frightened, and, turning aside, ran into the ice pond, and plaintiff was badly injured. His contention is that the cause of his injury was the negligence of the defendants, which consisted not so much in their removing the natural and artificial barriers by which travelers on the turnpike were previously protected, and in so changing the situation that they were exposed to danger, as in their o'1 fission to make any provision for guarding against the dangfcx that was created by their acts.
In that part of his cnarge recited in the first specification, and in his answers to points quoted in the second, third, fourth, and seventh pecifications, respectively, the learned judge submitted the question of defendants’ negligence to the jury, under all the evidence. In affirming plaintiff’s third point, he in effect instructed the jury in the language thereof, that, “ if they believe the locality is such that the existence of the dam, in connection with other circumstances, such as the sudden frightening of the plaintiff’s horse, rendered the road at that point a place of peril and danger, the defendants, having undertaken to change the grade so as to bring it on a level with the dam, were bound to do whatever was reasonable and practicable in the erection of barriers to avert any danger that might be incident thereto.” The principle asserted in this point was explained and elaborated in the general charge, especially in the portion thereof that is embraced in the first specification. It was further emphasized in the refusal to charge, as requested by defendants, that they “ were not bound to protect travelers from injury, by erecting a guard along or in front of said embankment ” or dam, and saying to the jury in
Sometimes it is not very easy to draw the line of distinction between questions that are exclusively for the jury and those that are properly for the court, but in this ease we think it was correctly done in accordance with established principles. In West Chester etc. R. Co. v. McElwee, 67 Pa. 311, it is said:
“ The law is well settled that what is and is not negligence in a particular case, is generally a question for the jury, and not for the court. It is always a question for the jury when the measure of duty is ordinary and reasonable care. In such cases, the standard of duty is not fixed, but variable. Under some circumstances, a higher degree of care is demanded than under others; and when the standard shifts with the circumstances, it is in its very nature incapable of being determined as matter of law, and must be submitted to the jury, to determine what it is, and whether it has been complied with. But when the standard is fixed, when the measure of duty is fixed by law, and is the same under all circumstances, its omission is negligence, and may be so declared by the court; and so, when there is such an obvious disregard of duty and safety as amounts to misconduct, the court may declare it to be negligence as matter of law. But, where the measure of duty is not unvarying, where a higher degree of care is demanded under some circumstances than under others, where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proved.”
As stated in Crissey v. Railway Co., 75 Pa. 83, the principle is as follows: “ Where the measure of duty is ordinary and reasonable care, it is always a question for the jury.” The same principle is recognized in numerous cases, among which are McCully v. Clarke, 40 Pa. 399; Hey v. Philadelphia, 81 Pa. 44; Fritsch v. Allegheny City, 91 Pa. 226; Burrell Tp. v. Uncapher, 117 Pa. 353 ; Plymouth Tp. v. Graver, 125 Pa. 24.
The language so fitly employed in that case may be applied with equal force to the case under consideration. Whether, in consequence of the local changes made by defendants, the pond, of considerable depth, etc., formerly elevated about eight feet above the turnpike, but now on a level therewith, was dangerous, and if so, whether it was in such close proximity to the public road as to render travel thereon dangerous, etc., were, according to all well-considered authorities, questions of fact for the jury. If the changes referred to had been made by the turnpike company, and suit had been brought against it for neglect of duty in not providing a guard-rail or other suitable protection against danger, the same questions would have arisen. By permission of the sequestrator, the changes were made by defendants, for their own convenience and benefit, and it thereby became their duty to provide such protection as the changed condition required, if any. The affirmance of defendants’ third, fourth, and fifth points would have had the effect of taking the case from the jury, and holding as matter of law that the defendants, who, for their own convenience and benefit, raised the grade of the turnpike to the level of their pond, and left it in that dangerous condition, without providing any protection whatever as a substitute for the embankment and the fence which they removed, were not guilty of any negligence. This would have been a wide and dangerous departure from well-settled principles. The question of negligence, of which there was an abundance of evidence, was clearly for the jury.
The case was carefully and correctly tried, and, in the absence of any reason for disturbing the verdict, I cannot assent to its reversal.