ÆäÀÌÁö À̹ÌÁö
PDF
ePub

ing by. In Curry vs. Luzerne Borough, 24 Pa. Superior Ct. 514, on page 520, Justice Morrison said: "The evidence in this case does not convict the borough authorities of neglect in permitting the steam boiler and engine to be operated near this highway. But we think if the road was narrow and crooked at this point, and the embankment was as alleged by the plaintiff, it became the duty of the borough authorities to take notice of the fact that the danger at this point was probably increased by the permanent operation of a steam engine there; in other words it was an object which sems to have been of a permanent character, and as is well known, would be likely to frighten horses. Therefore, the duty of the borough authorities was more imperative to straighten and widen the highway at this point if practicable, and in any event they should have provided a sufficient guard rail along said embankment, if it was such an embankment as was dangerous in an unguarded condition. But, in saying this we are not to be understood as laying down the rule that road officers must pass along their highways and endeavor to determine where horses will become frightened and what will be likely to frighten them at a given place. There is no such general rule as this. But on the contrary the road officers must take notice that the best of horses are liable to frighten and shy, and, therefore, they must construct their highways and protect them so that they will be reasonably safe for a careful driver when his horse is frightened. The important thing is that all horses are liable to become frightened and to go out of the road at times, and the problem for the supervisors is to inspect their highways and so construct them as to protect the traveler from necessary danger when his horse is frightened. It may, as a general rule, be stated that no man can foresee at what point or place, or at what object a horse may become frightened. It can also, with great positiveness, be said that persons having charge of such highways can, by reasonable care, determine what is necessary to be done to render such highways, at all points, reasonably safe for careful drivers, with roadworthy horses."

We think there was evidence in any event of negligence on the part of the borough in allowing the hitching

post to remain in its location and condition, and especially so when the road roller, likely to frighten horses, was located so close to it on the opposite side of the street.

The next question which arises is as to the proximate cause of the accident. If it was negligence in the borough in allowing the hitching post to remain as it was, and if the plaintiff's horses, frightened at the road roller, ran into this hitching post, which caused the plaintiff's injuries, the negligence of the borough in maintaining the hitching post was the proximate cause of plaintiff's injuries. At the trial the jury were instructed that if the negligence of the independent contractors, Dale and Gaynor, was the sole cause of accident, the defendant would not be liable. But if the roller was such as would likely frighten roadworthy horses and the plaintiff's horses took fright from the roller and ran against the hitching post, which was in a defective condition, without which the accident would not have happened to the plaintiff, the negligent condition of the hitching post was the proximate cause of the plaintiff's injuries. In Plymouth Township vs. Graver, 125 Pa. 24, on page 37, Justice Clark quotes Shearman and Redfield on Negligence approvingly as follows: "Negligence may be the proximate cause of an injury, of which it is not the sole or immediate cause. If the defendant's negligence concurred with some other event other than the plaintiff's fault, to produce the plaintiff's injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury, in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time: Shear. & Redf. on Negligence, 10." In Bitting vs. Maxatawny, 177 Pa. 213, on page 216, it is said: "That the ordinary horse will at times take fright is well known; that his movements when affrighted are wholly unreasonable and unforeseeable is well known. What provision shall reasonably be made for the safety of travelers on the highway, in view of these facts, is for the jury. The size of the stream bridged; the elevation above the water; the width of the bridge; the surroundings where located; these are all to be considered in determining whether there was negli

gence, and whether the consequence might and ought to have been foreseen.

"The mistake made in the argument is, in treating the unexpected movements of the horse when affrighted as something that could not have been foreseen, and therefore something that defendant ought not to be answerable for. But the fright could be foreseen, and that the horse, acting under fright, would jump to one side, back, turn short around, or run away, was also foreseeable; and this is really foreseen by those having in charge the public highways.'

[ocr errors]

In Yoders vs. Amwell Township, 172 Pa. 447, on page 454, it is said: "It may at once be conceded, that if the traveling public always or generally drove only very gentle and easily managed horses, in daylight, at a slow gait, over very narrow bridges, such an accident as here happened would not have been the natural and probable consequence of the neglect to put up guard rails, for then the circumstances in this case would have been extraordinary. But no such limited use of a public highway would be made in any township in the state, and this the authorities well knew; that it would be traveled night and day by those driving gentle and spirited animals, some that would take fright, others that would not, was known to them. If, with such knowledge, this accident might or ought to have been foreseen, and with reasonable care have been provided against, then was their negligence the proximate cause of the injury?"

The jury were warranted in finding that had it not been for the location and condition of the hitching post, the accident would not have happened and plaintiff would not have been injured. Counsel for defendants contend that the independent contractors were not negligent, but admitting that they were negligent in placing the roller and that the plaintiff's horses took fright from this negligence and ran against the hitching post which was in a defective and negligent condition and but for this condition the plaintiff would not have been injured, the jury were warranted in finding that the defendant's negligence was the proximate cause of plaintiff's injury. If the negligence of the independent contractors combined with the negligence of the defendant in producing

plaintiff's injuries and plaintiff would not have been injured but for the defendant's negligence in allowing the hitching post to remain, the borough is liable and the jury were warranted in finding the condition of the hitching post to be the proximate cause of plaintiff's injuries.

It is claimed by defendant that the plaintiff was guilty of contributory negligence and therefore cannot recover. The plaintiff had passed by the place of the accident earlier in the day and knew of the location of the roller and was acquainted with Canton street. There were two other roads either of which the plaintiff could have taken, the one running close by the Lehigh Valley Railroad tracks and the other passing over a steep hill, according to the evidence. Each had dangers of its own. Canton street at the place of the accident and at the time was being used by the traveling public. The court could not declare as a matter of law that plaintiff was guilty of contributory negligence in not taking one or the other of these roads unless the danger in passing over Canton street was so imminent and apparent that an ordinary prudent man would not undertake it. Under the circumstances in this case we think the question of the plaintiff's contributory negligence in this respect was for the jury. In Chambers vs. Braddock Borough, 34 Pa. Superior Ct. 407, on page 412, it is said by Justice Anderson: "It is contended, however, that the plaintiff was guilty of contributory negligence in passing over the walk with a knowledge of its defective condition. Under the evidence this is a question of fact which was submitted to the jury with appropriate instructions. It was the duty of the plaintiff to use such care as a prudent person would have used under similar circumstances. The measure of this duty is ordinary care. This would vary with the circumstances. The case as presented by the evidence was not one which would have justified the court in declaring as a matter of law that the plaintiff was guilty of contributory_negligence. The fact that the walk was used every day by many persons is some indication that it was not considered so obviously dangerous that a person ought not to walk theron and the plaintiff testified that in passing over it at the time of the accident he observed nothing

that indicated danger at the place where he was hurt. There was no pavement on the opposite side of the street and there is evidence to show that the wagonway was rough and uneven because of the action of the water and the presence of stones in the road. It does not appear to have been so manifestly dangerous that the court should have said it ought to have been avoided. It is not necessarily a negligent act for a person to use a walk or street in a city, which is out of repair. It is for the jury to say whether the person injured is guilty of negligence where it appears from the evidence that the defective condition is such that the streeet might be used safely by the exercise of reasonable care. Where the danger is so great and apparent that a person of ordinary prudence would regard the situation as dangerous and, therefore, avoid it, the court should say as a matter of law that the person taking the risk to his damage is guilty of contributory negligence; but this can only be done in clear cases: Borough of Easton vs. Neff, 102 Pa. 474; Allen vs. DuBois Boro., 181 Pa. 184; Mellor vs. Bridgeport Borough, 191 Pa. 562; Steck vs. City of Allegheny, 213 Pa. 573; Rick vs. Wilkes-Barre, 9 Pa. Superior Ct. 399."

In McManamon vs. Hanover Township, 232 Pa. 439, on page 444, Mr. Justice Moschzisker, delivering the opinion of the court, said: "In Steck vs. Allegheny, 213 Pa. 573, we said: 'A person who uses a street or highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination **** is not necessarily guilty of negligence because he does not take the safer route. It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous, and therefore avoid it, that a trial court can say, as a matter of law, that the person using the more dangerous route is guilty of contributory negligence. If the alternative route has dangers of its own, and the dangers

of the route actually taken are not so great and obvious as to deter the general public and ordinarily prudent and careful people from using it, the question of the contributory negligence of a person injured in using it is a question for the jury.”

"It is only where the facts plainly show that the

« ÀÌÀü°è¼Ó »