Kitchen v. Union Township , 171 Pa. 145 ( 1895 )

Opinion by

Mr. Justice McCollum,

It appears from the evidence in the case that at the point where the accident occurred the width of the roadbed was about seventeen feet, that the quarry derrick was about five feet from the upper edge of it, and that it was about twenty feet from the lower edge of it to the wall, the top of which was from seven to eight feet below the roadbed, and about six feet above the railroad tracks. It is said that the road was laid of the width of fifty feet, and, if so, it is obvious that some of the operations of the railroad company were within the lines of it. The derrick was used to move the stone from the quarry across the highway to the cars for transportation to the points where it was wanted. While the derrick itself from its proximity to the roadbed was liable to frighten horses, the operation of it was quite likely to do so. If the slope from the lower edge of the roadbed was gradual and even as the appellant contends, it was nevertheless a point of danger because it declined eight feet in twenty and terminated in a perpendicular descent of six feet to the railroad. There was no fence or guard rail between the roadbed and the slope, and a horse frightened by the appearance or noise of the derrick would naturally shy towards the open space between the roadbed and the wall. This is precisely what occurred in the case at bar. The horse, frightened by the movements and noise of the machinery employed in operating the quarry, shied off the roadbed and dashing down the slope landed with the driver, the cart and the occupant of it upon the stones loaded on the flat car at the foot of the wall. The plaintiff received a serious injury which she attributes to the negligence of the township in not erecting a suitable fence or guard rail at or near the lower edge of the roadbed opposite the quarry. The condition we have described existed a long while before the occurrence in question and the township was chargeable with notice of it. Was it a condition which called for the erection by the township of a guard rail or fence to provide against accidents of the kind under consideration ? The jury answered this question affirmatively and the answer was authorized if not demanded by the evidence in the case. The township however contended that conceding its negligence the plaintiff could not maintain her suit because her negligence concurred with its own in causing the injury. This contention clearly involved a question of fact which the jury under proper instructions found against the defendant.

The case at bar does not belong to the same class as the cases cited to sustain the township’s contention. It is plainly distinguishable from them in .its facts, and it is, we think, governed by the principles on which Burrell Township v. Uncapher, 117 Pa. 353; Plymouth Township v. Graver, 125 Pa. 24, and kindred cases were determined. The cases which constitute the township’s principal reliance in this contest recognize and approve the principle applicable to the facts of this case. In Shaffer v. Jackson Township, 150 Pa. 145, Justice Heydkick, speaking for this court, said, “ The concurrence of that which is ordinary with a party’s negligence does not relieve him from responsibility for the resultant injury. Examples of such concurrence may be found in cases where by reason of causes known to the public authorities horses are likely to become frightened, and in their sudden fright plunge over an unguarded precipice or rush upon some danger within the highway for the existence of which the authorities are responsible. In such cases the consequences of the neglect of duty are natural and probable and ought therefore to be foreseen.” A like view is expressed in Horstick v. Dunkle, 145 Pa. 220, and in Hess v. City of Lebanon, 149 Pa. 222.

We cannot sustain the exception to the ruling complained of in the 12th specification. It was a ruling in accord with many decisions of this court and not in conflict with any of them. In view of the circumstances of the case and in the light of these decisions, we think it was proper for Dr. Bonham to supplement his description of the locality of the accident and of the elements of danger in it to ordinary travel on the highway with his opinion that it was a dangerous place.

If it he conceded that the matter complained of in the 17th specification was irrelevant, the admission of it furnished no ground for reversing the judgment because it was at most harmless error.

We are not satisfied that any error was committed in the rulings complained of in the 13th, 14th, 15th and 16th specifications.

The case was tried in the court below on correct principles and presented to the jury in a clear and impartial charge.

All the specifications are overruled and the judgment is affirmed.