Emery v. Philadelphia , 208 Pa. 492 ( 1904 )

Opinion by

Mr. Chief Justice Mitchell,

The stress of the appellant’s argument is in the contention that the city is not bound to keep its rural highways in safe travelable condition for their full legal width and as the body of the deceased was found outside of the “ wrought portion ” of the Welsh road, lie must be assumed to have gone there at his own risk. The first six and the eighth assignments of error are based on this argument. But the learned judge could not have charged the jury on this view as it assumed facts which were not conceded. By the “ wrought portion ” of the road, appellant means a space of sixteen feet in width in the middle of the road which was laid with what appears to have been an unusually good macadam pavement. • But it was in evidence that on each side of this paved strip was a smooth surface of sod or earth at the same level but inclining gradually to the sides and apparently intended for the same use, in fact what is commonly known in this part of the country as a “ summer road ” used by many travelers in good weather in preference to the macadamized stone. Moreover it is not conceded that the locality was clearly rural and the road at that point a mere improved country road. All of these matters were proper for the consideration of the jury in the whole case, and could not have been safely assumed by the court as admitted or proved beyond controversy. .

But even if the facts had been conceded to be as appellant claims, the exemption from liability outside of the wrought portion of the road could not be carried to the extent appellant contends for. It is true that in some of the very numerous cases on the subject it is said that as to country roads the township or other municipality does its duty if it keeps a reasonable portion of the road in safe and convenient condition for travel, and that this rule applies in certain circumstances to roads which have become city streets, and that, as a corollary, a traveler who voluntarily leaves the safe portion of the road assumes the risks of so doing. But all these expressions must be read in connection with the special facts under consideration at the time. In Monongahela City v. Fischer, 111 Pa. 9, the traveler crossed the highway diagonally at night for the purpose of taking a footpath over adjoining land, missed the path, and fell over the outer wall of a culvert. The principal question in the case was the instruction of the trial judge on the subject of contributory negligence. This case which is the strongest on that side of the question it is said in Corbalis v. Newberry Township, 132 Pa. 9, “ was a very close one .... and depended largely on its own facts, none of which were disputed.” See also Scranton v. Hill, 102 Pa. 378; Merriman v. Phillipsburg Borough, 158 Pa. 78; and Wall v. Pittsburg, 205 Pa. 48, all of them likewise cases of injury occurring at night, where the traveler to that extent voluntarily encountered unknown risks.

But none of these cases give any support to the contention that the city, or even a borough or township may with impunity leave a highly dangerous and insidious obstruction, such as a heavily charged and exposed electric wire, on any part of a public highway, or so near it that a traveler accidentally or intentionally deviating a few feet from the beaten track, may encounter it to the risk of life. On the contrary it has been uniformly held that those using this new and dangerous agent are bound to the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to the wires, and liable to come, accidentally or otherwise, in contact with them: Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540.

The fact that the wires are owned or used by the city as part of its police instruments, does not alter the rule, or exempt the city from liability under it: Mooney v. Luzerne Borough, 186 Pa. 161; Herron v. Pittsburg, 204 Pa. 509.

The only remaining question relates to the admission of the Carlisle Mortality Tables, as evidence of the expectation of life of plaintiff’s husband. Those tables have been held admissible and that question is not now open: Steinbrunner v. Pittsburg, etc., Ry. Co., 146 Pa. 504; Campbell v. York, 172 Pa. 205; Kerrigan v. Penna. R. R. Co., 194 Pa. 98. They are not conclusive and are far from satisfactory evidence but are admitted from necessity because they are the best guide attainable to the establishment of a material but necessarily uncertain fact, the natural duration of the individual life which has been terminated by the injury in controversy. Uncertain and unsatisfactory as any test drawn from the general duration of life must be when applied to an individual case, it is better than the uninstructed guess of a jury. But the restrictions under which such testimony should be received and the cautions with which it should be submitted to the jury are clearly and authoritatively set forth by our Brother Dean in Kerrigan v. R. R. Co. supra, and see also McKenna v. Citizens’ Nat. Gas Co., 198 Pa. 31.

Appellant’s assignment of error however is not founded on the simple admission of the Carlisle tables, but on their admission as evidence of the expectation of life of plaintiff’s husband, without accompanying proof of plaintiff’s own age and expectation. It is argued that while the husband might have lived a certain number of years, yet the wife might not, and therefore her damages ought to be limited by the double contingency of their joint lives. The point is new, and the fact that it has not been raised before in any of the very numerous cases where it would have been appropriate if sound, would seem to indicate that it has not appeared tenable to the professional mind. We are of this opinion. The life of the husband having been terminated by the accident, its probable duration in the regular course of nature must, as already said, be approximated by the best evidence attainable, even though that leads only to conjecture. But the widow, plaintiff, is living and is entitled now to compensation for what she has lost by her husband’s death. To complicate the question by another conjecture as to her expectation of survivorship, would add further uncertainty in the result without being so clearly demanded by reason or justice as to be imperative or even advisable. , ,

Appellant cites Baltimore, etc,, Turnpike Road v. State, 71 Md. 573, ^* which seems to give the approval of a court of very high authority to this contention. It appears however that under the Maryland code, action in such cases is brought by the state to the use of the widow and infant children, and the jury are to give “ such damages as they may think proportioned to the injury resulting from such death to the parties respectively.” It is not clear that this means more than that the jury instead of giving a lump sum to all, shall apportion their verdict among the various parties plaintiff. If such be the meaning, the inquiry as to the widow’s expectation of life would be relevant and material. But under our statute, the widow without regard to her age or expectation of life, takes such proportion of the damages as she would have taken in her husband’s personal estate in case of intestacy. Hers is a present right regardless of age. Whatever however may be the extent of the decision in the case cited, we do not think it should prevail against the general trend of the authorities, and especially the significant silence of our own cases in such a prolific field of litigation as deaths from negligence.

Judgment affirmed.