67 Pa. Super. 400 | Pa. Super. Ct. | 1917
Opinion by
The plaintiff’s action was brought to recover damages for injury to his farm caused by a fire alleged to have been communicated from a traction roller owned by the defendant township and in use on a public highway near the plaintiff’s land. The fire was ignited at the roadside on land adjoining the plaintiff’s and was communicated by a continuous burning to the latter’s premises. The roller was propelled along the highway in the forenoon of the day when the fire occurred and was in charge of an engineer and fireman employed by the supervisors of the township. Repairs on one of the public roads were in progress and the roller was used in connection with that work. It is contended by the appellant that the judgment ought not to be sustained because: (1) There is not sufficient evidence to support the allegation that the fire was communicated from the machine; (2) the
The evidence shows that the roller was used without a spark arrester; that coal was used for fuel; that it was propelled along the highway on an ascending grade and that in one place a spark thrown out ignited combustible material along the road. This fire was extinguished by one of the employees operating the machine. No direct evidence was offered that the fire which destroyed the plaintiff’s property was ignited by a spark from the roller but the day was dry, a high wind prevailed there was much combustible material on the land adjoining the road, there was little travel on the highway that forenoon and no other cause for the fire was shown. Numerous cases have been sustained where the fire was accounted for on circumstantial evidence, in some of which the proof was not more persuasive than that presented by the plaintiff: Elder Twp. School Dist. v. Penna. R. R. Co., 26 Pa. Superior Ct. 112; Derminer v. N. Y. Cent. & H. River R. R. Co., 42 Pa. Superior Ct. 538. There is no substantial ground for doubt under the evidence that the fire which destroyed the plaintiff’s property originated at the roadside on the Reading Iron Company’s land and burned continuously across that property to and over part of the plaintiff’s premises and the association of circumstances gives support to the plaintiff’s allegation that the road machine was the cause of his damage. The evidence shows that the machine had a spark arrester when it was bought but it had been removed in some way not disclosed by the testimony. There was some evidence that a spark arrester should be used on such a machine. We are unable to say under all the circumstances that the plaintiff’s case fails for lack of evidence.
The court refused to submit to the jury the question of the contributory negligence of the plaintiff and in this there was no error. After a careful examination of the
The learned counsel for the appellant states the main question to be whether a quasi municipal corporation governed under the Act of 1913 is liable for the torts, negligence, malfeasance and misfeasance of its officers, employees and agents. We do not deem it necessary to enter into an examination of the many cases discussing the responsibility and exemption from responsibility of counties and townships in the varying states of fact out óf which the cases arose. A township, it is true, has not general corporate capacity but it has certain responsibilities and obligations with respect to which it is competent to contract and act. .And within the circumference of these obligations it is liable for the conduct of its officer^ and employees. The construction and maintenance of township highways is a charge on such municipal districts. The supervisors are required to exercise authority on that subject. They are authorized by the Act of 1913, P. L. 915, to purchase material, machinery, tools and implements necessary for making and repairing roads and bridges and to properly care for them. Having purchased this machine and applied it to township uses in the discharge of a township obligation the negligence of its employees creates a.responsibility on the part of the township. The principle here involved is decided in Kriebel v. Worcester Twp., 253
The assignments are overruled and the judgment affirmed.