Burrell Township v. Uncapher

• Decision Date: 07 November 1887
• Docket Number: 104
• Parties: BURRELL TOWNSHIP v. ALBERT UNCAPHER ET AL
• Court: Pennsylvania Supreme Court

11 A. 619

117 Pa. 353

BURRELL TOWNSHIP v. ALBERT UNCAPHER ET AL

No. 104

Supreme Court of Pennsylvania

November 7, 1887

Argued October 12, 1887

ERROR TO THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY.

No. 104 October Term 1887, Sup. Ct.; court below, No. 115 September Term 1885, C.P.

A summons in case for negligence was issued on July 2, 1885, in a suit by Albert Uncapher and Hannah Uncapher, his wife, in right of said wife, against the township of Burrell. The plea was not guilty.

At the trial, on March 19, 1887, before JAMES B. NEALE, P.J., the following facts appeared: On Saturday evening, September 22 1883, the owners thereof had left a steam thresher standing at the road-side at or near the foot of a hill down which the public highway came. On the afternoon of the next day Sunday, Mr. and Mrs. Uncapher were returning from a visit to the wife's father, in a light spring wagon drawn by one horse. The husband was driving, and with him on the front seat was his son, a lad of twelve years, while the wife, with a little girl and a babe, occupied the rear seat. The grade of the hill was rather steep, but the road-bed was in good condition, and at the place of the accident was at least nineteen feet wide. At the right side of the road, coming down the grade, there was a steep declivity extending along down to a bridge below where the steam thresher stood and unguarded by barriers; on the left was the hill-side. From the wheels of the engine to the edge of the road the distance was twelve feet. The horse was being driven at a walk down the hill, when, as the party came to a point near the foot of the hill, the horse suddenly became frightened at the thresher and sprang to the right partly over the declivity. The husband, a blacksmith by trade, familiar with the management of horses, tightened the wagon lock and endeavored to keep the horse upon the road-bed by drawing upon the left line; but the horse, becoming unmanageable, made a second plunge and went over the precipice, upturning the wagon and dragging it to the bottom. The wagon fell upon Mrs. Uncapher causing severe injuries. The thresher was unobserved by the occupants until the horse frightened. The next year after the accident the supervisors of the township placed a rail barrier along the edge of the highway.

In the course of the trial, Joseph Beck sworn: Plaintiffs proposed to show by this witness that he had a conversation with G. W Wilcox, one of the supervisors of the township before the accident occurred, and that he notified the supervisor of the dangerous character of the road, and told him that it should be guarded. Objected to, because there was no limit to any particular part of the road. Objection overruled; exception. The witness testified in support of the offer.

William Fry, called for defendant, sworn: Q. Had you a conversation with Mr. Uncapher in reference to where the accident happened? Objected to as incompetent. By the court: It appearing that the action in this case is brought for the recovery of damages for injuries sustained by the plaintiff and for her own account and in her own right and that the wife is the real party and the husband a party ex necessitate rei, he is not such a party on the record that his declarations made against the interest of the real party may be proven. The offer is overruled; exception.

Isaac Schall, called for defendant, sworn: Defendant proposed to show by the witness the declaration of Albert Uncapher, a plaintiff on the record, in the evening of the day of the accident, in answer to a question as to how the accident occurred, that the horse had scared at the engine and went off the road. Objected to. Objection sustained; exception.

Albert Uncapher, called as if on cross-examination, for defendant. Plaintiffs objected, (1) because the witness was the husband of the plaintiff in interest, joined as a party for the sake of uniformity only, and not to give force or validity to the cause of action, and (2) because incompetent to be called as a witness against the interests of his wife, the principal party to the record. Objections sustained; exception.

Thomas T. Jackson, sworn: Defendant offered to prove a conversation of the witness with Albert Uncapher, since the accident, in which said plaintiff told witness that it was caused by the horse getting frightened at the engine and that he, the said Uncapher, pulled the wrong line or the horse would not have gone over the bank, nor the accident occurred. Objected to by the plaintiffs. Objection sustained.

The plaintiffs requested the court to charge:

1. If the road at the place of this disaster was so dangerous by reason of its proximity to the precipice, that common prudence required extra precaution in the way of the erection of guards or barriers therealong, in order to insure the safety of the traveling public, it was the duty of the officers of the defendant to have the same erected, and if the jury should find from the evidence that the absence of such guards or barriers therealong was the proximate cause of the disaster and injury to Mrs. Uncapher, their verdict should be for the plaintiff.

Answer: Affirmed if the jury find that the plaintiff did not negligently contribute to the accident.

2. If the jury find from the evidence that a guard or barrier along this very dangerous piece of road was necessary, and that the erection of a proper guard or barrier therealong from the place where the horse took fright on to where the accident occurred and on past where the engine stood, would have enabled the driver to stop the horse or in any manner have prevented the disaster, and that the absence of such guard or barrier was the proximate cause, or one of the proximate causes thereof, then their verdict should be for the plaintiffs.

Answer: Affirmed if the jury find that the road at the place of the accident was dangerous and required barriers, and that the absence of such barriers was a proximate cause of the accident and that the plaintiff did not negligently contribute to the accident.

3. If the jury find from the evidence that the negligence of the defendant's officers in failing to guard this very dangerous piece of road, was the proximate cause of the injury to the plaintiff; the fact that the injury was caused immediately by the negligence of Beck and Hileman in leaving this engine by the roadside would not exonerate the defendant, and their verdict should be for the plaintiffs.

Answer: Affirmed if the jury find that the accident resulted from the negligence of the defendants, and that the result of such negligence was a proximate cause of the accident, and that the plaintiff did not negligently contribute to such accident. As I said before, gentlemen, the fact as to the road being dangerous is entirely left to the jury under the evidence.

4. If the jury should find from the evidence, that the attention of the township authorities was called directly to this as a very dangerous piece of road, and to the necessity of a guard along the side of the road next the precipice, before the accident occurred, and they neglected to protect the same by such guard; that the same result was likely to have followed from the fright of a horse from any cause; that ordinary prudence required such authorities to guard the same against the contingency of such fright, and that the failure to erect such guards was a proximate cause of the disaster, their verdict should be for the plaintiffs.

Answer: Affirmed if the jury find that the plaintiff did not negligently contribute to the accident, and that the road at that place was dangerous, and the place over the road was a precipice or was in itself of such dangerous character as should have commanded the attention and the protection of the supervisors.

The defendant requested the court to charge:

1. That if the jury find from the evidence in the case, that the engine or obstruction which is alleged to have been the cause of the fright of the horse driven by the plaintiffs, was the proximate cause of the accident, and that said engine or obstruction was left on or near the public road on Saturday night about or after dark, before the accident next day, without the knowledge or consent of the township road supervisors, then there was no negligence on the part of the defendant, and the plaintiffs cannot recover.

Answer: This point is affirmed if the jury find there was no negligence on the part of the township, and that the negligence on the part of the township was not the proximate cause of the injury.

2. That if the jury from kthe evidence, that the passage of the road down the hill, from or near the point where the plaintiffs' horse scared, in the absence of any barriers, was openly and obviously dangerous at or near the place where the engine or obstruction was, then it was the plaintiffs' duty either to go by some other route, or get down from the wagon and walk past the obstruction, rather than recklessly expose themselves and children to a danger which was imminent; and if they find from the evidence no such attempt was made, then they voluntarily undertook to brave the danger and cannot recover.

Answer: This point is affirmed if the jury find the facts as stated and that the plaintiff, Mrs. Uncapher, could have had sufficient notice of the imminence of the danger and could have had opportunity and means of alighting from the wagon. But any negligence on the part of the husband not avoidable by the wife should not be considered as negligence of the wife.

3. That negligence is not to be presumed from the mere occurrence of an accident, and if the jury believe from the evidence, that the horse the plaintiff was driving, was frightened at the engine or obstacle standing at the side of the road in...