29 Pa. Super. 580 | Pa. Super. Ct. | 1905
Opinion by
Hannah Milliren and J. J. Milliren, her husband, brought an action in trespass against Sandy township, to recover damages for an accident that happened to Hannah on June 23, 1904, while traveling from Du Bois to visit her mother at Rathmel, on one of the public roads of the township. While walking along this road, she was overtaken by a young man named Keagle, driving in a light wagon, with a load of feed, and he invited her to ride with him. He sat on a high spring seat near the front of the wagon and Mrs. Milliren took a seat beside him. They soon came to a piece of bad road and the evidence tends to show that either the right or left fore wheel of the wagon dropped into a rut or hole in the highway, and Mrs. Milliren was either thrown or jumped out of the wagon and broke her left arm. She testifies that the right wheel dropped into the hole and that she was thrown out on that side, but Keagle says positively it was the left wheel that dropped into the hole and that she went out over that wheel. The case was thoroughly and carefully tried before the court and a jury and separate verdicts rendered in favor of each plaintiff and judgments being entered thereon, the defendant appealed.
' The action in favor of the husband and wife and the verdicts and judgments are in correct form : Act of May 8, 1895, P. L. 54. ’
The important questions before the court were : 1. The negligence of the defendant. 2. The contributory negligence of Mrs. Milliren. 3. The measure of damages.
A careful examination of the evidence, the charge of the court and the answers to the numerous points presented, convinces us that there was sufficient evidence to carry the case to the jury, as to the bad condition of the road and the notice to the supervisors, both actual and constructive. The evidence was not very strong as to actual notice, but there was sufficient evidence that this road had been badly out of re
But it is earnestly contended by the learned counsel for the appellant that the plaintiffs could not recover on account of the contributory negligence of Mrs. Milliren, and that the court erred in not giving a binding instruction to the jury to that effect. We cannot adopt this theory under the evidence in the case. Certainly this woman had a right to travel upon this road and it does not appear that she had any notice of its bad condition, except what she could see as she was approaching the place of the accident. It was a much traveled road and she had no notice or knowledge that it was dangerous. It is urged that it was contributory negligence for her to ride in the high spring seat. This may be so and possibly the jury ought to have so found, but a careful consideration of all the evidence leads us to a satisfactory conclusion that this question was for the jury. If she was sitting in the spring seat and holding to the back of it as she alleges and exercising proper care, sh¿ cannot be charged with contributory negligence, as a matter of law, because one of the front wheels of the wagon dropped into a rut or hole and threw her upon ' the ground. We are not satisfied that the evidence required the jury to find that she was free from contributory negligence, and, indeed, the writer is of opinion that the jury might well have found against her on this ground. It appears that the team or horse was being driven on a walk and I am not satisfied that if she had been using her eyes in observing the condition of the road, and exercising such care as she ought to have exercised, she would have been thrown out of the seat or compelled to jump therefrom. But under the evidence this question was not for the court, the law required it to be referred to the jury, and there is sufficient evidence to support the verdict to the effect that she was free from contributory negligence. Upon the question of contributory negligence and when it is for the jury, see Musselman v. Hatfield Borough, 202 Pa. 489; Templeton v. Warriorsmark Township, 200 Pa. 165 ; Baker v. Irish, 172 Pa.
The assignments of error are all dismissed and the judgments affirmed.