Volk v. Springhouse & Hilltown Turnpike Road Co. ( 1917 )

Opinion by

Kephart, J.,

The duty of a turnpike company to keep its road in a travelable condition is higher than that exacted from municipal authorities. The obligation resting on municipal authorities is to keep the road reasonably safe for public travel. In Born v. Allegheny, Etc., Plank Road Co., 101 Pa. 334, and Lancaster Ave. Improvement Co. v. Rhoads, 116 Pa. 377, it is held that turnpike corporations are bound to keep their roads in repair and safe condition. As stated by Justice Clark, in Improvement Co. v. Rhoads, supra: “In such cases the liability to pay tolls is a consideration for the undertaking on the part of the corporation to furnish a safe road for the use of the traveler as an equivalent. It is the same in principle as any other case where service is performed for pay.” A turnpike company is not an insurer of the safety of every person who travels over its road, and it is not liable merely because an accident happens by reason of some defect in the road. When charged in an action at law with liability for an injury received by one in traveling over the highway, it is under the same rules of evidence as any other corporation or individual that is charged with liability for an injury, that is, the plaintiff must prove negligence in the offending party to establish his case. The doctrine of res ipsa loquitur ‘does not apply. The evidence shows that the hole in the turnpike existed for a timé sufficient to charge the defendant with constructive notice, and the court did not commit error in charging with respect to the duties of the defendant, especially as it charged in the exact language of the Supreme Court. The third assignment of error is overruled.

The matters contained in the second assignment of error are fully met by the charge of the court. This assignment is dismissed.

Augusta E. Volk, wife of Albert Volk, on October 5, 1913, was injured by being thrown from the rear seat of an automobile, when it struck or fell into a ditch, hole or depression in the defendant’s road. The automobile was driven by the plaintiff’s son, seventeen years of age, a registered driver", and is shown competent to drive a car. There is nothing in the evidence that would justify the court in saying as a matter of law that negligence of the driver, if any, was imputable to the mother: Little v. Central Disk, Etc., Telegraph Co., 213 Pa. 229. It does not appear who owned the car. The court submitted the question of imputed negligence to the jury. This is as much as the defendant had a right to expect under the facts in this case. Nor could the court declare that the plaintiff, in riding in the rumble seat of the car, going at a speed of fifteen miles an hour, was negligent. Her weight, the style of car used, the manner and speed in which it was driven, and other circumstances, were questions for the consideration of the jury. This, the first assignment of error, overlooks in its request for instruction the question of imputed negligence, the control of the mother over her son, and the fact that the driver’s father was also in the car. The court was not in error in declining to affirm the point presented in this assignment.

We think the testimony of Albert Yolk in rebuttal was admissible to contradict the testimony of the defendant’s superintendent. The fourth assignment of error is overruled.

Judgment affirmed.