Solida v. Brady Township ( 1915 )

Opinion by

Kephart, J.,

The plaintiff was injured when two wheels of his buggy dropped over the side of a bridge on a public road. The bridge and road were in good condition^ except that the bridge had no guard-rails. The accident happened on a dark night and plaintiff’s lantern, which had been lighted, was broken a quarter of a mile from the bridge and could not be re-lighted. He proceeded on his way in the darkness, trusting to his horse to keep the road. He had frequently driven over the road and knew that the bridge, without guards, was close by, and that his horse was not trustworthy, as it was necessary for him to “guide him by the line.” “When I thought he was getting off to one side too far by looking ahead I pulled Mm over.” He said he could not tell whether he was in the center of the road or on the side of it. As he reached the bridge he heard the running water seven feet below.

With this knowledge, plaintiff approached a dangerous place in the highway without attempting to ascertain his position with relation to it. Had he proceeded with the care and caution demanded by the circumstances he relates, he would have descended from his buggy and led his horse. This was not a trifling danger but, considering the character of the night and the manner in which his horse was traveling, it became serious and imminent, and it was his duty to use every precaution that his senses must have suggested. It is not the case of a traveler knowing of the defective condition of a highway through the absence of guard-rails who, before proceeding, examines the road, locates his team in the middle of the highway and proceeds on his journey, when his horse suddenly shies at some unknown objects and is thrown over the embankment, as in Wilson v. O’Hara, 14 Pa. Superior Ct. 258, nor is it the result of the failure to select another route, as this danger approached with care and prudence was not so great as to compel the selection of the safe route: Stokes v. Ralpho Township, 187 Pa. 333. It comes within the rule laid down in Mueller v. Ross Township, 152 Pa. 399, “It is not denied the road in question was safe for ordinary travel. There are few country roads that are safe at night when it is so dark that nothing can be seen. Knowing as he did the condition of this road, of the curve, the embankment, and the slope, and trusting entirely to his horses to select the traveled part of the road, the plaintiff assumed the risk. If he could not see he should have gotten out and led his horses. There are five senses to judge a man’s conduct, and the exercise of some one of them would certainly have enabled the plaintiff to know where he was and to discover the embankment. As he elected to be guided by the one sense, which, under the circumstances, was of no use to him, he must be presumed to have taken the risk of his horses getting on the embankment, and falling down the slope.” This was followed by Conrad v. Upper Augusta Township, 200 Pa. 337. The court below did not commit error in refusing to take off the compulsory nonsuit. The assignments of error are overruled, and the judgment is affirmed.