Oil City & Petroleum Bridge Co. v. Jackson , 18 W.N.C. 407 ( 1886 )

Mr. Justice Paxson

delivered the opinion of the court,

The defendants’ first point called for a binding instruction that, “ upon all the evidence, the plaintiff is not entitled to recover.” As the affirmance of the point would have ended the case, the defendant was not entitled to such affirmance if there were any disputed questions of fact which ought to have been submitted to the jury. In considering this question I desire to say at the outset that we are not disposed'to adopt the theory upon which the case was tried below and argued here, that the defendant owed no duty to the child whose unfortunate death was the occasion of this suit. The defendant company was the owner of the bridge where the accident occurred; it charged and received tolls from those who crossed it; hence, when it allowed foot passengers, adults or .children to cross upon the carriage-way, we are not prepared to say that it owed no duty to those who so crossed it. It may be that the duty was not the same in each case; that is to say, that the company would not be held to as strict a rule where a passenger used the carriage-way as where lie crossed upon that part of the bridge appropriated to pedestrians.

What is the true measure of the defendant’s responsibility ? We think it may be found in Pennsylvania & Ohio Canal Company v. Graham, 63 Pa. St., 290, where it was said by Justice Skarswood, after a careful examination of the authorities in this state and elsewhere: “ From these cases it may be deduced that, where a corporation, in consideration of the franchise granted to it, is bound by its charter to keep a road or bridge in repair, it is liable for any injury to a person arising from want of repair, whether the defect be patent or latent, unless he be in default, or unless the defect arose from inevitable accident, tempest or lightning, or the wrongful act of some third person, of which they had no notice or knowledge. It matters not that ordinary care was used in the erection or repair of it, and that such work was done under contract by competent workmen.” This paragraph is carefully worded, and the rule it lays down sufficiently stringent. By it we propose to test this case.

It being the duty of the company to keep the bridge in repair, it is evident that had the accident been the result of its being out of repair, the company would have been liable, even though such defect was latent, and the company had no knowledge of it. Thus, if there had been a defective plank, or a hole in the carriage-way, and an accident had resulted therefrom, there could have been no question of the liability of the company therefor, even though ignorant of the existence of such defect. To this extent the company may be said to insure the safety of those who cross its bridge.

But there was no evidence that the bridge was out of repair. This accident did not proceed from any such cause. It was not shown that the carriage-way, where the accident occurred, was not safe for vehicles of all kinds to pass and re-pass at will, and for foot-passengers, subject to the danger of injury by passing vehicles. That it contained places where a venturesome child, unattended by a care-taker, might be injured, was established bjr the evidence, -and was shown by the accident itself.

It appears from the nncontradicted testimony that the plaintiff’s two little boys, one seven years of age and the other between five and six, with the permission of their father, started to go from his residence, on the south side of the Allegheny river, to his office on the north side, on the 25th of May, 1882, and that the boys entered the carriage-way instead of the foot-way of the bridge. The younger child, who appears to have been the less venturesome, objected to going upon the roadway, but the elder insisted, and they entered upon it. The only knowledge we have of what occurred was the story told by the younger brother. He said: “We went into the bridge, and Harry got out onto the gas-pipe to walk, and I told him to get off. I was afraid he would get hurt; so I told him to get off, and he said he did not want to, and then he asked me if I would let him get on again if he would get off, and I said I would not let him get on again, and then he said he would not get off; so I was going ahead of him, and heard him halloo, and I turned around and looked, and I saw him standing slanting, and he was just falling. I did not see him after that.”

In the construction of the bridge there was a hub-rail placed along the sides of the carriage-way at a sufficient height from the floor to protect them from the hubs of passing vehicles. In May 1882, when repairs were being made, a portion of this hub-rail was broken off, and it was contended by the plaintiff that at the time of the accident, it was still off for a distance of eight or twelve feet at the place where the boy fell. Conceding this to be so, there was a gas pipe some six or eight inches in diameter along that side of the bridge of sufficient height to answer the purpose of a hub-rail. It also appears that there were open spaces left along the sides of the carriage way, directly over the chords of the bridge. These spaces were left for the convenient and perhaps necessary examination of the chords, which were some three feet below the floor of the bridge. At each side and above the chords there was originally a space of about eleven inches, through which anything falling upon the chord might roll off into the river below. It was alleged by the plaintiff, and we may regard it as found by the jury, that these apertures were so enlarged by the repairs made in May, 1882, that a child falling upon the chord from above would be likely to roll off into the river.

These openings or holes were in such a position that no one, adult or child, would or could get into them in the ordinary course of travel. Thej were useful, if not necessary, in order to inspect from time to time the condition of the bridge. Substantially similar openings exist on many bridges in this commonwealth, which are regarded as safe bridges, and upon which such an accident has never been known to occur. W e are now brought face to face with the question whether a bridge company is bound to maintain such a structure as to prevent the possibility of an accident to a.child. A venturesome boy, in his natural love of sport, will explore every nook and recess of a bridge, climb upon the timbers, and manage in some way to get through every hole large enough for his body to pass, and is as likely to get down on the piers or upon the roof as any where else. The case at bar furnishes an illustration of this. The boy who met with this sad mishap was not content to walk upon the carriage-way, which was safe for all, but insisted upon walking upon a round gas pipe placed some distance above the floor, notwithstanding the remonstrance of his younger brother, who, child as he was, saw the danger. Of course, no blame is imputed to the boy for this. It was childlike, and perhaps the very thing I might have done myself at his age, but the question is, has the bridge company been guilty of such neglect as to be liable to the boy’s father for his death? Some little of the responsibility for accidents to children ought to remain upon the parents whose duty it is to look after them and preserve them from danger. It must not be overlooked that this suit was brought by the father for the loss of his boy. He was in the habit of crossing this bridge daily, perhaps several times daily, as his house was on one side of the river, and his office on the other. He must have known the condition of the bridge, and may be presumed to have considered it safe, else he would not have given the permission on the day in question, as he had often done before, to cross it unattended. It is hardly possible that he had not seen these openings again and again, but he also knew that the bridge was perfectly safe for travel in the ordinary way, while a child might be injured there, as he might have been injured almost anywhere, by courting danger in walking in dangerous places.

Upon a careful consideration of the case we are unable to see any such negligence on the part of the defendant company as to render them liable in this action. As before observed it was a safe bridge for the ordinary purposes of travel. The child who was killed was not using it in the ordinary way. He was walking upon the gas pipe where he ought not to have been, and which was so dangerous that his younger brother remonstrated with him, and warned him to get off. It is not necessary to impute negligence to the child; it is sufficient that he was injured, not as the result of the use of the bridge, but as the consequence of his venturing in his childish recklessness, where no one, child or adult, had any business to be.

We are of opinion that the defendant’s first point should have been affirmed.

Judgment reversed.