258 Pa. 496 | Pa. | 1917
Opinion by
This is an action of trespass brought by the plaintiff, Lou Winegardner, to recover damages for the death of her husband resulting, as she alleges, from the negli
The plaintiff’s husband was engaged in the huckstering business in Fulton and Huntingdon Counties. In the early morning of December 29,1915, he and one Otis Kerlin left the home of the former in a three-seated light spring wagon drawn by two mules and laden with crates of chickens and eggs which the deceased intended to market at a place in Huntingdon County. As they were ascending a hill on a public highway in the defendant township, Winegardner and the mules and wagon went over an embankment, and he was killed. The road where the accident occurred was from eight and one- • half to nine and one-half feet wide with a gradual slope towards the embankment over which the deceased and the team fell. It was raining and sleeting on that morning, and at the place of the accident considerable sleet had fallen on the road. The embankment was some five or six feet in height and was not protected by guard rails or otherwise. At the foot of the hill and about a quarter of a mile from the place of the accident, the deceased attached the lines to the rubber lever on the right side of the wagon, and he and Kerlin alighted and permitted the team to ascend the grade while they walked immediately in the rear of the wagon. The team thus proceeded up the hill until the accident occurred.
The only person who saw the accident was Kerlin, and
By the testimony of other witnesses, it was shown that on the day of the accident it was raining, sleeting and snowing, was a bad day, that there were no ruts in the road where the wagon went over, that there was a steep slope on the upper side of the road, and that, under ordinary circumstances, the lower or right hind wheel of a wagon being driven up‘the hill would be about fourteen inches from the embankment.
The defendant called several witnesses, many of them to show that Kerlin had given them a different account of the accident from the story he told on the witness-stand while testifying for the plaintiff. It was conceded that the embankment or declivity at the place of the accident was unprotected, and that no barriers had been
In discharging the motion for a new trial, the learned court below did not rest his action on the ground that the township was not negligent, but held that “even if the township were negligent in not having a guard rail at the place of the accident, that negligence was not the proximate cause of the injury.” It is the duty of a township to exercise reasonable care to keep its highways in a safe condition for ordinary travel. It must anticipate and provide against danger to persons using its roads for travel conducted in the ordinary manner. It must remove obstructions and defects which would naturally or probably cause injury to those persons who might have occasion to travel upon its highways. This duty is not confined to maintaining the bed of the road in a solid and safe condition and clear of obstructions, but extends to the erection of barriers or other devices for guarding unsafe or dangerous places on or along the road. If a public road through a township is so dangerous by reason of its proximity to a precipice that common prudence requires extra precaution, in order to secure safety to travelers, the township is bound to use such precaution and the omission to do so is negligence: Scott Township v. Montgomery, 95 Pa. 444. Applying this well settled rule to the facts of the case before us, the evidence was ample to warrant the learned judge in submitting to the jury the question whether the supervisors of the defendant township were negligent in not protecting the road by guard rails or otherwise where the accident occurred. The condition of the road at this point was, or should
We are of opinion that the learned court was in error in holding as a matter of law that the deceased was guilty of' contributory negligence. It is contended by the defendant that Winegardner was negligent in not retaining his place on the wagon and directing the team as it ascended the hill, and further that it was a negligent act, precluding a recovery, to place himself below the wagon when it started to slide over the precipice. If Nerlin’s testimony is believed, the team was, at the time the wagon began to- slide, in the bed of the road, and just where it would have been had a safe driver been directing it from his seat on the wagon. Kerlin says that one of the mules swerved aside from the beaten track, but had resumed its proper place in the road, possibly forty feet before it reached the place of the accident. If this be true, it would seem that, if it were a negligent act on the part of the deceased to leave the wagon, it did not contribute to- his death. However this may be, common observation teaches that very frequently drivers of teams, ascending the hills and mountains of the State and carrying heavy loads leave their seats on the wagons for the purpose of lightening the burden, walk in the rear of the wagons, and from that place direct the movements of the teams. We think, under the circumstances of this
It is rather difficult to determine just what position the deceased occupied with reference to the wagon at the time it threw him over the embankment. The only direct testimony on this point shows that he suddenly sprang to the right rear corner of the wagon and took hold of the bed when the wagon began to slide. He manifestly acted upon a sudden impulse and for the purpose of protecting his property. He doubtless thought he could arrest the sliding of the vehicle, and prevent it and the mules going over the embankment. Did he act as a careful and prudent man would have acted under the circumstances confronting him, or did he voluntarily enter into an obvious danger which should have been recognized and, hence, avoided? These are questions which' we think should be determined by a jury and not by the court.
The fifth assignment of error is sustained, the judgment is reversed, and a venire facias de novo is awarded.