151 Pa. 304 | Pa. | 1892
Opinion by
At the point where the accident in this ease occurred, the road was upwards of thirty-three feet in width. On the one side of the road, and next the fence, there was a long narrow pile of stones about one hundred and fifty feet in length, about five or six feet in width and about eighteen inches in height towards the road and sloping backwards to about two feet in height at the fence. The entire remaining width of the road was available for, and used as, the traveled way. It was testified that owing to the driving of heavy teams over it, loaded with stone, and for a considerable time, it was muddy and cut up and the best part of the road was that which was next the stone pile. The road was much driven over every day and was of ample width from the stone pile to the opposite side for all purposes of public travel. The plaintiff was perfectly familiar with the road and was constantly traveling over it. On the day of the accident he had taken a load of corn to the mill and was returning over the road. As he came to the place of the accident, he noticed some boys shooting at pigeons. He said: “ The mules didn’t mind it as well as the horses, but I attended well to my business and I thought I had got along pretty well. I had passed some men along the road on both sides, with guns, and as I had passed those there was a shot fired and scared my horses. I suppose I could have got them under control when the second shot was fired. They became unmanageable and I could not do anything, and they ran towards the stone pile that was there and the saddle horse fell. I often wondered after that I could not keep my foot out from under but I could not. They were two strong horses that I thought I could well manage, but the saddle horse fell. I was fast up to my knee lying on the stone pile.”
On cross-examination he was asked: “ Q. How did it happen that the horse fell ? A. When the horses frightened the off side horse ran over the tongue and in tussling and tangling around there the horse fell. 1 never thought of the horse falling. The horse I suppose weighed fourteen hundred. Q. How
The plaintiff also testified: “ Q. You say that that shooting frightened your horses? A. Yes sir, I have been traveling along there as I have said, and never had any trouble. The most of the time I was on the wagon when I had an empty wagon and left my horses walk along. . . . Q. The one horse that you were riding fell ? A. Yes sir. Q. He was on the near side? A. Yes sir. Q. The saddle horse? A. Yes sir. Q. He was the farthest from the stones? A. No sir, the nearest. Q. Then the horse next to the stone pile fell? A. Yes sir. Q.. What made him fall ? A. The struggle, I suppose, of the off side horse. He was on the stones and naturally they were struggling there on the stones and finally the horse fell which was a great mystery to me.”
He further said he had commenced hauling stones over that road in March, 1889, and continued to do so right along until the day of the accident, January 1, 1890, and that in the summer of 1889 he noticed a man digging a foundation between the stone pile and the fence. He said: “ I asked him what they were going to do, and he said they were going to put up a wall.”
The plaintiff’s witness C. H. Hoffer, who was a surveyor and made a draft of the location, testified that when he made the draft there was no stone pile there, but in the place of it there was a stone wall. It would seem from this that the stones were gathered at this place for the purpose of building a stone wall there, and that it was actually built between January, 1890, and the time of the trial in May, 1891.
The plaintiff was asked: “Q. Didn’t you say to Mr.-that you never blamed the stones, but you blamed the shooting
Other witnesses were examined for the plaintiff but gave substantially the same account of the occurrence. One of them, John Grove, testified that the stones sloped towards the road, that there was a gutter there where they were dumped in, and at places “ the embankment and the road run as full as the stones,” to use his own expression. In other words at those places they were nearly or quite on the same level. He was asked: “ Q. Don’t the stones slope down to the road ? A. Yes sir. Q. Don’t the wagons get on the stones to keep out of the mud ? A. Yes sir they try to get the solid ground. Q. Ilow did Mr. Kieffer drive; towards the stones? A. Yes sir, along side of the stones. The same side of the street that the stones are on. Q. Where was the track of the wagon at the time you picked him up; was it in the usual track ? A. I think it was. Q. The horse had jumped over on to the stone pile ? A. The off side horse had got over the pole and I suppose shoved the saddle horse over on to it.”
From the foregoing testimony and statement of facts, all proved by the plaintiff, the ease is brought directly within several of our recent decisions which control its determination. The pile of stones was evidently being accumulated by the authorities of the defendant corporation for some time, for the purpose of building a stone wall, to which use they were applied. They were piled on one side of the road not used for traveling purposes, and occupied only five o.r six feet •of the entire span of the roadway. The space left for travel was twenty-six or seven feet and there was no reason why the whole of it could not be used for travel. The road was much traveled and appears to have amply sufficed for that purpose. There was no collision of the plaintiff’s team with the stone pile and the horses were not frightened by the stones. They were however frightened by the shooting and in the struggle of one of them in jumping over the pole, the other, on which the plaintiff was riding, was caused to fall on the stones and the plaintiff’s leg was caught under the horse and injured. The stone pile did not produce either the fright of the horses or the fall of one of them. The shooting frightened the horses, and the fall of one of them was occasioned by the struggles of
In Jackson Township v. Wagner, 127 Pa. 184, we said: “Township officers are bound to anticipate and provide against the ordinary needs of travel, conducted in the ordinary manner, and to remove obstructions and defects which would naturally or probably cause injury to the traveler along the highways; but the township is not an insurer against all possible accidents, nor is it bound to anticipate the danger to which a broken wagon or a frightened horse may expose the driver. Such a burden would be' too heavy for any township to bear and the law does not impose it. The general rule is well stated in Hey v. Philadelphia, 81 Pa. 44, to be that ‘roads and bridges are made for ordinary travel; if they fulfill such purpose they are sufficient, and those in charge of them are not responsible for extraordinary accidents occurring on them.’ ” In that case a pile of stones taken from a quarry had been accumulated along the side of the road, about twenty-five feet in length, and at places several feet high, leaving an unobstructed roadway about fifteen feet wide to a water way on the other side. Near the stone pile there was a hole or depression in the roadway caused by a washout., The plaintiff’s horse had passed the stone pile when he became frightened and turned around and went back towards the stone pile. The wagon was broken in turning and ran on three wheels and the hub of broken one, till the stone pile was reached, when the hub of the broken wheel struck it, overturning the wagon and injuring the plaintiff. Our Brother W1LLIAMS in commenting upon the facts of the case said: “ The question is whether this road was obstructed so as to interfere with its ordinary use, and whether such obstruction caused the injuries. . . . The dragging axle drew horse and wagon to one side of the road so that the axle struck the stone pile and the wagon was overturned and the
As the evidence in the present case clearly shows that there was ample space left for the roadway, and that the accident was not the natural or probable result of any act or omission of the borough officers which rendered the highway unsafe for the purposes of ordinary travel, it follows that the third point of the defendant should have been affirmed requiring a binding instruction to find for the defendant.
In the more recent case of Worrilow v. Upper Chichester Township, 1 Advance Reports, 622, the judgment below was reversed without a venire upon the same course of reasoning as in Jackson Township v. Wagner. Our Brother IIbydeick, reviewing the testimony, said: “ To entitle the plaintiff to recover it was therefore not enough to show that he sustained an injury upon the highway, and that he was free from contributory negligence. He must also show that the ordinary needs of public travel, conducted in the ordinary way upon this road, had not been anticipated and provided for, and that his injury was a natural and probable consequence of the neglect of duty on the part of the township officers. Failing upon either point he failed to make out his case.”
In the present case there was no testimony showing or tending to show, that the accident which caused the plaintiff’s injury was either the natural or probable consequence of the presence of the stone pile. The plaintiff himself said he always got along, in passing this place, without any difficulty, on account of the stone pile, and that his horses did not frighten at the stone pile but at the shooting. Now the shooting
Judgment reversed.
