Hensel v. A. L. Herr & Bro. thrown it nearly two feet to the west of where he did locate it, at the point where the building is being erected, and almost two feet more if he had run it North one and one-half degrees East. If he had extended the north end of that line four perches farther to the north, as was necessary to make the length of that line what it should have been, as we have explained, it would have thrown it still further west. In this way it would have passed almost if not entirely west of the addition to the building on defendants' land. We think this witness paid entirely too much attention to the iron pin at what he calls the southwest corner of defendants' land. No such point is described in the original deed made in 1884. That corner is described as a stone. The plaintiff in his testimony testified that the iron pins were put there when he bought his property in 1911. It is unnecessary for us to state that no act of the plaintiff, or even of George W. Hensel, Sr., could have changed that point as a corner of the defendants' land so as to affect the defendants. Whatever right George W. Hensel, Sr., had to the land now owned by the defendants passed from him in 1884, and nothing that he nor anyone else, except the owner of the defendants' land, did could affect or change what that deed conveyed. It will be observed also that the witness does not run the line between the lands of these parties in the same direction that is given to it. in the deed to the plaintiff, from which he says he obtained his data. There it is described as running South one degree and thirty-five minutes East, and he makes it reading from the North, South three degrees. and sixteen minutes West. He The defendants employed John H. Myers as their surveyor. surveyed their land, made a draft of it, and testified at the trial. From his survey the line between the lands of the parties in this case runs west of the building that is being erected upon the defendants' land. He begins at the stone at the southeast corner of their land. This is evidently the same point that Mr. Trout commenced his survey, for the witness testifies that a line run in the exact direction he, Mr. Trout, made it, viz.: South seventy degrees and sixteen minutes West, would run to the iron pin mentioned by him. He ran the line South sixtyeight degrees and forty-five minutes West, which is allowing one and one-quarter degrees for the variation of the needle, which is more favorable to the plaintiff than the testimony of Mr. Trout makes it. With that same variation he runs the line between these properties North one degree forty-five minutes East, to a point where it joined the eastern boundary of defendants' land. He then took the two eastern lines, which are so nearly in the same direction as to appear to be almost a straight line, and their length, as appears in the deed of 1884, and it brought him to the place of beginning. He made the western line ten and seven-tenths perches long, which, as we have said, we think is its correct length, and the quantity of land included in these courses and distances is twenty-three perches, which is the quantity conveyed in the deed from George W. Hensel, Sr., to the defendants' predecessors in title. This line passes some distance to the west of the building being erected upon defendants' land. Hensel v. A. L. Herr & Bro. The witness testified that he confirmed the correctness of his location of the southern point of the line in question by measurements from an old line stone on another tract of land, but as it did not appear when that stone was placed, we do not give much weight to the testimony. We are convinced from all of this testimony that the plaintiff has not proven that the building complained of is being erected upon his land, and the burden of proving this rested upon him, but that it is being erected east of the line dividing the plaintiff's land from that of the defendants, and upon their land. It has been urged that, because the parties had entered into a verbal agreement to exchange certain land, which includes that in dispute, and that in making the deeds for that land the iron pin was considered the southwest corner of the defendants' land, the defendants were bound by the location of that pin as a corner of their land. We do not agree with this. While the parties did agree to make an exchange which would give to the defendants all the land lying east of Church Street, there was nothing said or done in that agreement or subsequently, so far as the testimony showed, to bind the defendants to any corner or any line. It is not pretended that they knew where the line was, other than from a survey made by the plaintiff, of his land, and it was only after they had employed the surveyor, Mr. Myers, to ascertain the location of the line, that they became convinced that they were erecting the building on their own land. CONCLUSIONS OF LAW.-As we find as a fact that the building is being erected upon the defendants' land, the plaintiff is not entitled under the law to have them enjoined from proceeding with its erection. The preliminary injunction will, therefore, have to be dissolved, and the bill dismissed at plaintiff's costs. In compliance with the Equity Rules, counsel for the defendants will prepare a decree in proper form, in accordance with this opinion. January 15, 1921. Opinion by HASSLER, J. We have carefully examined the exceptions, filed to our findings and conclusions in this case, and are not convinced that we committed any error in arriving at them. We, therefore, dismiss the exceptions. Court of Common Pleas of Lancaster County Loretta V. Montgomery v. Paradise Township, Brackbill et al. Supervisors. Negligence-Contributory negligence. The plaintiff was injured at midday on a Monday by driving into a washout on one side of a public road which was caused by a heavy rain on the night of the preceding Friday and had not been repaired although one of the township road masters was notified of it on Saturday night. Other teams had avoided the washout by driving around it. On suit to recover damages, Held, that a non-suit was properly entered as no negligence was shown in the defendant, the time being too short for repairs after actual notice or for the jury to imply constructive notice, and the plaintiff should have seen and avoided the hole, and was therefore guilty of contributory negligence. Rule to strike off judgment of non-suit. April Term, 1920, No. 80. B. F. Davis, for plaintiff. Chas. W. Eaby, for defendant. January 15, 1921. Opinion by HASSLER, J. The plaintiff in this case seeks to recover damages for injuries sustained by reason of defendant's negligence. The act of negligence, alleged in the statement, is that the defendant maintained a road in a dangerous and unsafe condition and unfit to travel, it having "been washed out in the wheel track on the right side," at least three or four days previous to the accident. The testimony at the trial showed that on Friday night, March 12, 1920, a heavy rain washed a rut or ditch in the wheel track in the road on which the accident occurred. It was about two feet wide, two to three feet deep, and from thirty-six to thirty-eight feet long. The driveway of the road at this point was narrow. On the side where the rut was located there was an ice bank about one foot high, and on the opposite side was another ice bank not so high. One team, at least, a short time before the accident to plaintiff, passed this point safely, avoiding the hole, by having the wheels of the wagon on the ice on the side opposite to it. Others passed without accident on the same day, but it was not shown how they avoided getting into the hole. At noon on March 15, 1920, the plaintiff drove over the road, with the wheel of her wagon in the rut, causing it to upset, resulting in the injury complained of. Notice was given to the road master on Saturday night, March 13, of the condition of the road, but it was not repaired by noon on the Monday following, when the accident occurred. At the trial we entered a non-suit for two reasons, first, because no negligence of the defendant was shown, and, second, that the testimony did show that the plaintiff was guilty of contributory negligence. We are now asked to strike off this non-suit. We do not think that there was any evidence produced that would have justified the jury in finding that the defendant was guilty of negligence. The condition of the road was such as to require repairs. Failure to do this promptly, after notice, actual or constructive, of its condition, would have been failure to perform its legal duty, which would have been negligence. VOL. XXXVII, No. 71 Loretta V. Montgomery v. Paradise Township, Brackbill et al. Supervisors. Whether the period of time between the time when the road became dangerous and unsafe and the time of the accident, was such, as to amount to constructive notice is usually a question for a jury: McLaughlin v. Corry, 77 Pa. 109; Gschwend v. Millvale, 159 Pa. 257. But where the bad condition occurred but a short time before the accident, no constructive notice can be implied, and a non-suit is properly entered: Hanson v. Warren Boro., 22 W. N. 133. In Garland v. Wilkes-Barre, 212 Pa. 151, three days was held to be too short to permit a jury to find constructive notice. In Knight v. Farmington Twp., 72 Sup. 156, two days was held to be too short a time to impute constructive notice to the defendants of the bad condition of a country road, which was neither a much traveled one nor in a thickly settled community. In Powell v. East Union Township, 71 Sup. 234, thirty hours was held to be too short to imply constructive notice of a dangerous place on a country road. Only two and a half days intervened between the time the rut or ditch was washed in the road and the time when the accident occurred, one of which days was Sunday. We are satisfied that there was no evidence here that would have justified a jury in finding that the defendant township had constructive notice of the condition of this road. Nor do we think there was any evidence of such actual notice as made it their duty to have the road repaired at the time of this accident. It was proven that on the night of March 13, 1920, one of the road masters of the township was notified of its condition, and that he was at the place where the accident occurred on the morning of March 15, 1920, the day the accident did occur. This was not such notice as made it possible for the defendant to have the road in good repair at noon on Monday, March 15. The danger was not such as to require its repair on Sunday, as it could be seen and avoided by those using the road, and there was no time to do so on Monday morning before the accident. But even though there was sufficient testimony to submit the case to the jury on the question of defendant's negligence, the testimony of the plaintiff showed such contributory negligence on her part as to prevent her recovering. In Township of Crescent v. Anderson, 114 Pa. 643, it is said that "One who knows or by ordinary care may know of a defect in a highway, and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect." In Robb v. Connellsville Borough, 137 Pa. 42, Mr. Justice Mitchell, delivering the opinion of the Court, said: "The reasonable care which the law exacts of all persons in whatever they do involving risk of injury requires travelers, even on the foot ways of public streets, to look where they are going, is a proposition so plain that it has not often called for formal adjudication. But it has been expressed or manifestly implied in enough of our own cases to constitute authority for those who need it. Thus in Barnes v. Sowden, 119 Pa. 53, the Court below instructed the jury that persons who walk along the foot ways or cross the streets of our City are bound to use their own faculties. . The plaintiff was bound to use her eyes. Not that she was to keep her eyes constantly and at every moment Loretta V. Montgomery v. Paradise Township, Brackbill et al. Supervisors. on the pavement, but she was bound to do what people walking along the street ought to do as they walk the streets in order to use them safely.' It was held that even this instruction was, under the evidence, too favorable for the plaintiff, that the obstruction was such as she was bound to see, and that her negligence was too clear to be left to the jury. So, in the somewhat similar case of King v. Thompson, 87 Pa. 365, this Court held that walking into an opening left for light and ventilation, and extending fifteen or sixteen inches from the wall of the house, was negligence per se, the present Chief Justice saying: Persons using public streets ought also to exercise some little caution.' In Dehnhard v. Philadelphia, 15 W. N. C. 214, the judge below, who tried the case without a jury, said in his findings of law that the condition of the pavement' could have been seen by the plaintiff if she had given attention to it. . . . The duty of vigilance is as obligatory upon the citizen as on the municipality'; and this court said, in a per curiam opinion, that the law was correctly declared. In Philadelphia v. Smith, 23 W. N. C. 242, the court below charged the jury that plaintiff could not recover if there was negligence on her part . . in walking without seeing where she was going.' And this part of the charge is quoted with approval by our Brother Sterrett in affirming the judgment. See, also, Dickson v. Hollister, 123 Pa. 421, and Buzby v. Traction Co., 126 Pa. 559. The accident took place in the early evening, when, according to plaintiff's own testimony, it was light enough to recognize persons across the street, to tell the denominations of bank-notes and to see and step upon the plank if she had been looking." In Shallcross v. City of Philadelphia, 187 Pa. 143, Iseminger v. York Haven Water & Power Co., 206 Pa. 591, Sickels v. Philadelphia, 209 Pa. 113, Becker v. Philadelphia, 212 Pa. 379, Lautenbacher v. City, 217 Pa. 318, it is decided that the same rule applies to those driving upon a public highway as to those walking upon the sidewalks. In Stern v. Reading, 255 Pa. 96, the plaintiff was driving on a street in the City of Reading. The wagon was jarred so that he was thrown to the street. It was alleged that the jar was caused by the wheel of the wagon getting into a hole in the street. The dimensions of the hole were given by a witness for the plaintiff. Chief Justice Brown, in delivering the opinion of the Court, said: "If the hole was of the dimensions given by the witnesses, the plaintiff, if he had exercised ordinary care, could not have avoided seeing it from his seat in the open wagon, for the accident occurred on a clear day, in broad daylight. His contributory negligence would have been a good ground for the non-suit." In the case at bar the plaintiff approached the dangerous hole or ditch in the road in broad daylight. It was of such size and in such location that she could not have failed to see it, had she looked where she was going. This it was her duty to do. If she had looked where she was going she must have seen it, and if she then deliberately drove into it, making a test whether her wagon would upset or not, she took chances, and cannot recover, as this was contributory negligence on her part. If she did not look, and therefore did no tsee it, she was guilty |