14 Pa. Super. 145 | Pa. Super. Ct. | 1900
Opinion by
The plaintiff seeks to recover damages for injuries suffered in being thrown from a wagon, alleged to have been caused by the neglect of the township authorities to keep in proper condition a public road. The road in question led from Duncannon to Marysville, passing the point where the Susquehanna river curves around the end of Cove.mountain, where the entire space between the river and the precipitous mountain side was occupied by the tracks of the main line of the Pennsylvania railroad and the township road in question. The evidence clearly indicates that the road always had been narrow. On March 17, 1896, the Pennsylvania Railroad Company, having made preliminary surveys for the reconstruction of its tracks, undertook the actual work, upon the ground, of reconstructing and changing the location of this road for the distance of about a mile and a quarter. The company, through its contractors and employees, began and carried through to completion the construction of the road upon its new location, upon a route beginning at the top of what is known as Boston hill, and extending along the side of the mountain at varying distances above the location of the old road, to a point near Cove forge, where it again joined the old road. The road as thus relocated and constructed by the company consisted in part of a cut into the side of the mountain and in part of a fill or embankment which extended out into and rested upon the bed of the old road during the greater part of its length, the amount of the filling in upon the old road varying at different points. In the process of construction, the earth and stones taken from the mountain side were thrown over the embankment and found their lodgment in the space between the two roads or upon the bed of the old road. At frequent intervals the employees of the railroad company collected the stones and material which had rolled
The road was in this condition on March 31, 1896, when the plaintiff attempted to pass over it and was injured. She was riding in a wagon, to which were attached two horses driven by John Seiders, who owned the vehicle and horses. Seiders was not a common carrier, and both he and the plaintiff were members of a party who were voluntarily assisting a neighbor to move from one habitation to another. Plaintiff was riding in the wagon merely by the invitation of Seiders, or in pursuance of an arrangement made for the convenience of those who made up the party. She was carried without compensation, merely as an act of courtesy upon the part of Seiders, who had full control of the team and the wagon. At Duncannon station, a quarter of a mile before reaching that portion of the road, the location of which was being changed, the lead horse in the team, behind which the plaintiff was riding, frightened at a passing train, but no injury resulted. The plaintiff testified that she knew that the railroad company had been working at the change of the location of that road for two weeks; that she could hear them blasting while she was in her own house, and her knowledge of the exact condition of affairs before she started on this journey is made clearly apparent by this testimony: “ Q. Did you know what they were doing, or talk to any one with reference to what they were doing ? A. No, sir, not more than persons come backwards and forward there and we asked them what they were doing, and they said they were blasting rocks. Q. Did they say anything about stones in the road? A. Yes, sir, they said there were lots of stones in the road down there and it was hard to get through with the team because there was so much stones and stuff there. Q. Were you acquainted with the old road? A. I had went that road pretty often. Q. You knew it was close to the railroad? A. Yes.” The plaintiff being acquainted Avith these facts, knowing that one of the horses of the team had scared at a train at Duncannon, and that at that time she, as a precaution, had asked a neighbor to stand at the head of the horse,
The only negligence which could have been charged against the supervisors, under the evidence in this case, was that they had failed to barricade this road and shut off public travel, for they had no power to prevent the filling in of the road by the Pennsylvania Railroad Company. The duty to barricade was that persons might be prevented from unwittingly passing into a dangerous position. The duty of travelers who knew the condition of the road was to take all reasonable precautions to avoid injury. The negligence of Seiders in driving into this position of imminent peril cannot be imputed to this plaintiff, but if she herself, with full knowledge of the conditions by which she was surrounded, joined with him in testing the danger, she is responsible for her own act. She testified that she had been raised on a farm and had been used to horses. The condition of the road, with the obstructions thereon, and the moving train, were in her plain view while the team was standing at the top of Boston hill. She testified that she could have gotten out at that point if she had so desired; that she had said nothing to Seiders about the danger, and that he was equally
Judgment reversed.