253 Pa. 452 | Pa. | 1916
Opinion by
This is an action against Worcester Township, Mont
That the township is liable for the negligence of its agents and employees in the same manner as individuals and other municipalities cannot be disputed: Dean v. New Milford Township, 5 W. & S. 545; Grace v. Stand
The evidence establishes as a fact that steam rollers are not usually provided with spark arresters, and it is not denied that such engines emit sparks, though not to such an extent as railroad locomotives and the latter are ordinarily supplied with such safety contrivances. Although the absence of a spark arrester is not- in itself evidence of negligence, it may be a factor in determining whether or not negligence on the part of the owner of the engine existed under given circumstances. The township supervisors, as well as their agents, were bound to know and guard against the ordinary dangers incident to the use of a machine of this nature. The lighting of a fire in the engine in close proximity to a building, under certain weather conditions, might be a proper and safe act, while under other conditions such action would be considered a highly dangerous proceeding. In a case like the present where there had been no rain-fall for a considerable time, and with a high wind blowing from the engine toward the barn, extra precautions were necessarily required to avoid the danger incident to starting a fire in the machine while in a position so close to the barn, especially where, as in this case, the engine was equipped with a forced draft which caused sparks to be emitted upon the starting of a new fire, and lacked a spark arrester attachment. The engineer admitted the general practice to be, when the machine was in operation on the highway, not to add fuel to the fire while passing buildings. It further appeared the draft increased with the load of the engine, and, also, that the existence of a small embankment at the place where the engine was standing on plaintiff’s premises required increased power and draft, and increased the danger from sparks in moving from the bam to the road. Un
Defendant further argues that the act of the roadmaster in placing the roller on plaintiff’s premises was a trespass, and not an act done in the performance of his duty, and consequently defendant is not liable for plaintiff’s loss. While it is true the township owned a shed for housing the engine located about two miles distant from plaintiff’s farm, it was not the custom to place the roller there at all times at the end of each day’s work, for the reason that a steam roller is a cumbersome and slowly moving machine, and to transport it for any considerable distance at the end of the day’s work, and return the following morning, means much loss of time. The usual rule, therefore, for storing the roller when not in use, when engaged in work at a distance from the shed, was to leave it at a convenient location along or near the highway. In view of this established practice the township cannot escape liability on the ground that its agent, in temporarily placing the roller on plaintiff’s property, committed a trespass outside the scope of his employment with plaintiff’s consent.
The question of plaintiff’s contributory negligence was also for the jury. She did not see the machine when first placed upon her property, -and was not consulted with reference to its being temporarily stored there. While it is true she noticed its presence shortly after its arrival, and made no objections to its remaining on her premises, she did not thereby necessarily assume full responsibility for the results that followed. Not being familiar with the dangers incident to the operation of the machine, and the best method of avoiding them, she was justified in assuming those having it in charge would exercise the reasonable care necessary in its operation to protect her property from danger, as the circumstances and weather conditions required. The same reasoning applies to the argument that her son, in giving
We find no error in the record, and judgment is affirmed.