Township of Plymouth v. Graver , 24 W.N.C. 335 ( 1889 )

Opinion,

Mr. Justice Clark:

The duties of the supervisors, in the opening and repair of the public roads, are defined by statute. The sixth section of the act of 1836 provides, that the public roads shall be effectually opened and constantly kept in repair, and at all seasons shall be kept clear of all impediments to easy and convenient passing and traveling, at the expense of the township, as the law shall direct. For any wilful or wanton failure to discharge these duties, the supervisors are personally liable, and the township is responsible in damages to those who suffer injury from their neglect: Dean v. New Milford Tp., 5 W. & S. 545. The liability of the township is commensurate with the duty, and hence in each case the inquiry is as to the extent of the duty enjoined by law.

The degree of care which is required of road supervisors has no exact legal standard; the law does not impose any absolute liability for every insufficiency of a road, or for every impediment to easy and convenient travel; they are required to do what is practicable to be done, and to preserve a reasonable condition of safety, with reference to the kind of road, its peculiar location, its adjacency to places of peril, and the amount and kind of travel it accommodates. It may be said, generally, that they are bound for reasonable and ordinary care, according to the circumstances. Where no danger may be anticipated, or the peril is but slight, a less degree of vigilance will suffice, than where the danger is manifest: Turnpike Co. v. Railroad Co., 54 Pa. 350. The object of a public road is to afford an easy, convenient, and reasonably safe means of passage for persons traveling thereon, with horses, wagons, etc., and the duty of the supervisor is, as far as practicable, to do what is reasonably necessary to secure that object.

It is contended, that the road in question in this case was, at the time of the occurrence complained of, in good repair; that it was in no way obstructed, and that as the horse took fright at the locomotive, and was killed by the cars, outside of the limits of the road, the township cannot be held for the consequences. But, granting that there was no physical obstruction or defect in the road, was there any other impediment to easy and convenient travel upon it ? It is said that the passage over it with horses and wagons was not safe; that it was located along and immediately adjacent to the track of the railroad, and that the effect of the passage of locomotives and cars on the railroad, at high rates of speed, in such near proximity to the road, was to frighten horses, in many cases to make them unmanageable, and that, in the absence of barriers erected for the protection of the public, the place was so dangerous that travelers were exposed to the utmost peril. It is argued that as there was a fence along the road, on the farther side from the railroad, and none between the road and the railroad, a horse, in attempting to escape from the object of its fright, w^as liable to turn on to the railroad, and that, anticipating the results likely to ensue, it was the duty’ of the supervisors to erect suitable barriers between the road and the railroad at this point.

It is certainly true, as a general rule, that the supervisors are in no way responsible for the condition of the surface of the land outside the limits of the road, nor are they bound to fence the road merely to prevent the traveler from straying out of the path; but they are liable for injuries to a traveler on the road, caused jointly by a defect in the road, and a defect in the adjoining premises, provided of course the defect in the road was the proximate cause of the injury: Burrell Tp. v. Uncapher, 117 Pa. 353; Shear. & Redf. on Negligence, 347. It is equally true, that supervisors are not bound to furnish roads upon which it will be safe for horses to run away. They are bound, however, to furnish roads that are reasonably safe; if they do not, and a traveler is injured, in consequence of culpable defects therein, it is no defence that the horse, at the exact time of the injury, was running away, or was beyond his control: Ring v. Cohoes, 77 N. Y. 83 (33 Am. Rep. 574); Shear. & Redf. on Negligence, 346, and cases there cited.

There may be such a state of things, however, at a particular place, as will require the erection of a barrier, in order to secure a reasonable degree of safety for public travel. In Lower Macungie Tp. v. Merkhoffer, 71 Pa. 276, there was a precipitous bank in the roadside, caused by an excavation made in mining, and, although the road was wide enough, under ordinary circumstances, and was otherwise in good repair, it was held as matter of law to be the duty of the supervisors to guard against danger, by erecting a barrier along the margin of the road, so that persons might not, in the night time or by the fright or shying of a horse, be thrown over the bank.

In general, however, whether a dangerous place, not within the highway but adjacent to, or near it, is so near as to make travel unsafe, is a matter for the jury: Warner v. Holyoke, 112 Mass. 362. The question is, whether or not the dangerous place is in such close proximity to the highway, as traveled and used, as to render the use of the highway unsafe. The decision of such a question is most appropriately made by submission of it to the practical judgment and experience of a jury upon a consideration of all the proofs respecting it. This rule as applied to bridges is illustrated in the case of Newlin Tp. v. Davis, 77 Pa. 317. In that case, the negligence alleged Avas the failure of the road supervisors to provide barriers or side rails to a bridge across the Brandywine. The bridge formed part of the public road; there Avere no side rails ; and the evidence showed that whilst the horse Avas being driven across the bridge, he frightened at a piece of plank nailed OArer a hole in the floor, commenced backing and, before he could be prevented, backed OArer the bridge into the creek, and the horse, harness and carriage Avere injured. The question of negligence was submitted to the jury, under instructions that it was the duty of tlie township to keep the bridge as safe, considering all the circumstances, as it was reasonably practicable to make it, and that it was for them to decide, whether the bridge was defective or not, in not having been provided with railings : the jury found for the plaintiff, and compensated him for the injury.

In Burrell Tp. v. Uncapher 117 Pa. 353, a horse and wagon were being driven down a hillside road. At the right side of the road coming down the grade was a steep declivity, unguarded by barriers. Arriving at a point near the foot of the hill, the horse suddenly took fright at a steam thresher standing at the roadside, and sprang to the right, partly over the declivity ; becoming altogether unmanageable, he made a second plunge, and went over the precipice, upturning the wagon, and injuring the persons therein. The opinion of the court in that case was delivered by our brother Gbeien, who said: “ The immediately producing cause of the accident, in the present case,- was the unguarded condition of the roadside at the place where the accident occurred. If that unguarded condition of the roadside was an act.of negligence on the part of the defendant, it follows that the defendant, is responsible. Whether it -was negligence to maintain the road, at the place in question, without some kind of protection, was a question of pure fact, which it was the province of the jury alone to determine,” eto.

The case of Hey v. Philadelphia, 81 Pa. 44, is, we think, identical in principle with the case now under consideration. The action was brought against the city for negligence in not sufficiently guarding one of the roads in the public park, by reason of which, the plaintiff’s horse, being frightened at a passing railroad train, fell into the Schuylkill and was drowned. The road was wide and level and contained no obstruction; the stream was on one side and a high bank of rocks on the other; the only defect alleged was that there was no guard erected between the road and the river. The court below submitted the question of negligence to the jury who found for the plaintiff, but, upon a point reserved, judgment was afterwards entered for tlie defendant, non obstante veredicto. Tlie learned judge below was of opinion that the fright and breaking away of the horse was the immediate cause of the disaster, but this court took a different view of the case, and held that the negligence of the city in not providing a barrier, as found by the jury, was the proximate cause. “ If the road is so dangerous,” said Mr. Justice Gokdon, in the opinion, “ by reason of its proximity to a precipice, or any other cause, that common prudence requires extra precaution in order to insure the safety of the traveling public, why shall not the authorities be bound to such precaution ? ”

When the alleged impediment is a dangerous place outside the highway limits, the questions for the jury are, first, whether it is in such close proximity to the road as to render the highway unsafe for travel, and if so, second, whether the road supervisors have done what was reasonable and practicable, to guard against the danger. The place of danger, if not in the road, must be contiguous to it, or in such proximity as that the danger is practically the same as if it were contiguous.

In the present case, it is conceded that the railroad adjoins the public road; there was no space or barrier between them. The jury has found that it was a place of danger, and that the supervisors were negligent in failing to provide a reasonable protection to travelers against that danger. These as we understand the case, were proper questions for the jury, and we are concluded by the verdict.

It is contended, that if this be so, the supervisor's of roads will be held to erect barriers at all points throughout the state where the public roads are adjacent to, or parallel with, and in close proximity to, railroads. There is no such provision in the law; but it certainly is the law, and it has always been so understood, that whenever a public road is from any cause rendered so unsafe as to put the traveler in peril of his life, it is the duty of the supervisors to do what is practicable and reasonable, under all the circumstances, to render it safe; and the facts, in each case, should be submitted to the judgment and experience of the jury. It matters not, we think, whether the danger arises from an imperfection in the road itself, or from an excavation in it outside the traveled route, or from the existence of a declivity or stream of water at the roadside, or from a railroad upon which locomotives and trains of cars are accustomed to pass, if there is a concurrence of circumstances which ■ render the road a place of peril and danger to the traveler, the township is held to do whatever is reasonable and practicable to avert the danger which threatens.

We do not say that they are bound to make the road a safe one; that in many cases would be impracticable. They are bound simply to the exercise of common prudence and of ordinary care and diligence, to that end. The jury, upon a consideration of the whole ease, has found that the supervisors did not exercise that care and diligence which they should have exercised under the circumstances, and the question, as we have said, was for the jury. If the absence of barriers was a defect in the road, that defect was the proximate cause of the injury. “ Negligence may be tlie proximate cause of an injury, of which it is not the sole or immediate canse. 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. See also Burrell Tp. v. Uncapher, supra.

The question of contributory negligence was rightly submitted to the jury, and their finding relieves us from any consideration of that question.

It is true the plaintiff was not entitled to interest, as such, upon the value of his horse, but in computing the amount of the damages the jury may consider the time which has elapsed since the injury was received. There is some conflict in the cases: Pittsburgh Ry. Co. v. Taylor, 104 Pa. 306; Allegheny v. Campbell, 107 Pa. 530; but this we think is the rule generally recognized. The instruction of the court, in this respect, was perhaps not strictly accurate, but the verdict was small and the amount of the interest unimportant. We do not feel that we should disturb the judgment on that ground.

The judgment is affirmed.