Hedricks v. Schuylkill Township , 1901 Pa. Super. LEXIS 101 ( 1901 )

Opinion by

Orlady, J.,

To justify the court in giving binding instructions to find for the defendant' two conditions must concur: (1) the controlling facts must be established beyond doubt; (2) their effect, in the conclusions to which they lead, must be so clear and unquestionable that it may be judicially declared: Menner v. Del. & Hudson Canal Co., 7 Pa. Superior Ct. 135; Eardley v. Keeling & Ridge, 10 Pa. Superior Ct. 339. A careful examination of the evidence convinces us that such instruction should not have been given in this case. It may be, and doubtless was, a fact that the heavy dovuifall of rain was an important cause in producing the condition of the road of which the plaintiff complains. Although the supervisors were in no way responsible for such a cause, the testimony clearly shows that they directed and controlled the placing of the earth and stones on the roadbed and must have known that an ordinary rainfall would produce a condition similar to that which the jury has said caused this accident. Whether the deposit on the roadway was six or thirty inches in depth, as testified to by several witnesses, was a fact for the jury alone. The work was not done in grading or repairing the public road as such; and whether the water company was negligent in depositing this amount of earth and stone over the whole surface of the roadbed, under the supervision of the township authorities, without preserving a part of the roadway for use by the public and without requiring the maintenance of drains to carry off the normal rainfall and prevent the superimposed materials from making the road unsafe for public use, was for the jury to determine. The supervisor (Mr. Gill) had control of the work which was being done for uses not connected with the maintenance of the highway, and although the evidence does not clearly connect him witli the work done at the identical spot where the horse was injured, it does show that he was frequently on the ground to direct the manner of doing the work, and that the ditch, embankment and distribution of earth and stone all along the road was being conducted in the same manner as at the particular point where the accident occurred. The volume and character of earth and stone placed on the road, the manner in which it was distributed, the season of the year, the extent of roadbed covered, and the attention given by the supervisor to the work, were important items of evidence in determining the question of negligence. As to these questions the witnesses differed widely and we cannot reconcile the testimony. The trial judge in his charge carefully explained the duty of the supervisors in relation to the care of the roads, and the whole question was fairly submitted.

The judgment is affirmed.

Rice, P. J., and W. D. Porter, J., dissent.