Citation Numbers: 79 Pa. 412
Judges: Agnew, Gordon, Mercur, Paxson, Sharswood, Williams, Woodward
Filed Date: 11/16/1875
Status: Precedential
Modified Date: 2/17/2022
delivered the opinion of the court, June 5th 1876.
The duty of keeping public roads in repair is undoubted. But topographical features, population, and taxable ability necessarily
To apply the liability of a township for non-repair to a case of original construction, cannot be thought of. Yet this is the use made of Erie City v. Schwingle, 10 Harris 384, a case which states its own principle in the first sentence of the opinion. “ The principal question (says Black, C. J.) is whether a city corporation, bound by its charter to keep its streets in repair, is liable for an injury occasioned by its neglect to do so.” He cites six cases in the affirmative, not one of which is a case of original construction. This case is cited also to prove that a want of funds is not a defence. But the Chief Justice put the case on the ground that by the charter there was a power to exceed the limit, by the consent of a majority of the inhabitants, and their unwillingness to perform a duty was no excuse for its non-performance, and he said further: “ I will not say that damages can be recovered for an
What are the features of this road ? It is described by many witnesses as running through a long narrows, a high hill on one side, and a precipitous creek bank on the other. Its width was eight to twelve feet, in some places cut out of the solid rock. Its bed, chiefly of stone, was good, bounded by a high wall to hold up the creek side — proper to ride upon, but not to pass, and, therefore, turnouts or passing places were made at short intervals. To widen-the road at its narrowest point, to ten feet, required a cut in the hill-side twenty feet high, thus exhibiting the steepness of the hill, rising two feet in height to one in width' of excavation. These features display the character of the narrows, and the impossibility of making a double track at any feasible expense. Having, in travelling the Seventeenth Judicial District, seen such narrow roads, I readily recognise the diflieulty of making roads in such places, and where the topography of the country often forbids
The first and second assignments of error show how this case was tried in the court below. The defendant offered to prove that the road, at the place of the accident, could not have been made wide enough to admit of teams passing each other with ease and safety ; and that it could not have been protected on the side next the creek by the erection of a wall or otherwise without incurring an enormous expense, such as the township could not bear; this offered, in connection with the evidence already in, showing there were convenient places of passing, for the purpose of showing that the defendant was not guilty of negligence. This was objected to as irrelevant, and if proved, not a defence, and the objections were sustained by the court. The second point of the defendant raised the same question. It reads thus: “If the jury find that the road for the space of about seventy yards, embracing the place of the accident, by reason of the rocks on one side, and the creek on the other, could not have been widened or made secure on the creek side by a wall or otherwise, so as to admit of teams passing each other with ease and safety, without a vast amount of labor; that within short distances from the place where the accident occurred there were places in the road where teams could pass each other with ease and safety, and to which teams meeting at the place of accident could be backed without difficulty or risk; that the road in all respects, save width and protection on the creek side, was in good condition; and that the township was in no default in not securing a change of location, then there was no negligence on the part of the defendant, and the plaintiff cannot recover.” This point was refused. These assignments of error show that the court wholly ignored the question of original construction, treating it as out of the case, or else considering the township as bound to construct a double-track road under all circumstances. Hence we are prepared for the refusal of the defendant’s third point, and affirmance of the plaintiff’s second point, in which the court hold substantially that the township was primarily liable for damages and John was not guilty of contributory negligence in attempting to pass when, where, and as he did. But let Mr. John tell his own story. He met a boy in a one-horse buck wagon. He says: “The boy drove to the upper side of the road, as close as he could get and stopped. I drove up to the side of his wagon — told my wife to step out on the tail end of his wagon and then up the bank; she did so; I threw her the check lines; she said she could not drive; I told her to take one line in each hand, and I would tell her which line to draw; at that time I was at the end of the wagon, on the road; I took the horse of the boy
A more foolish attempt to pass another on a narrows cannot well be conceived. The court ought to have received the evidence and submitted the question of fact to the jury whether the injuries arose from the fault of the township, in the condition of the road, or from the necessity, in the original construction, of making a single-track road at this place.
Judgment reversed and a venire facias de novo awarded.