Ewing v. North Versailles Tp. , 146 Pa. 309 ( 1892 )

Pee Cueiam:

The court below left to the jury the question of the duty of the township to erect barricades along the road in question, so as to prevent cattle from getting on the railroad. This submission was proper, unless we are prepared to rule it as a matter of law. The situation was altogether peculiar. The road in question is located between two railroads, and it is about thirteen feet lower than the grade of the one, and two feet lower than the grade of the other. The plaintiffs were driving two cattle along the road, when they became frightened by an approaching train upon the higher road, and ran off the wagon road upon the other railroad, and were killed by a train. As before observed, there was no barricade at this point. The road itself was safe for ordinary travel, saving only its proximity to the railroads. The plaintiffs claimed that the township was negligent in not having a proper guard at this point. We do not see how the court below could have withdrawn this question from the jury, unless we hold that a township is not bound, under any circumstances, to erect guards at dangerous places. This we cannot do. We have too many authorities, and many of them our own, which rule the contrary.

The further point was made that the absence of a guard was not the proximate cause of the injury, and West Mahanoy Tp. v. Watson, 112 Pa. 574, was cited in support of this view. We do not think that case sustains the defendant’s contention. There, two horses had left the highway, and were found the next day upon the railroad track, several miles from where the sleigh had been overturned. They had evidently been killed by a train. We held that the defect in the highway was not the proximate cause of their death, the two events being too widely separated. The case is different here. The frightened cattle climbed up the shallow bank, and were almost instantly killed. We cannot say, therefore, that the absence of a guard was not the proximate cause. Indeed, were we to rule it at all, we would be inclined to say that it was. It was properly left to the jury.

Judgment affirmed.