Chartiers Tp. v. Phillips

• Decision Date: 29 October 1888
• Docket Number: 93
• Citation: 16 A. 26,122 Pa. 601
• Parties: CHARTIERS TP. v. JAMES J. PHILLIPS
• Court: Pennsylvania Supreme Court

16 A. 26

122 Pa. 601

CHARTIERS TP. v. JAMES J. PHILLIPS

No. 93

Supreme Court of Pennsylvania

October 29, 1888

Argued October 15, 1888

ERROR TO THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY.

No. 93 October Term 1888, Sup. Ct.; court below, No. 264 November Term 1886, C.P.

On October 29, 1886, James J. Phillips brought an action in case against Chartiers township, to recover damages for injuries alleged to have been caused by the negligence of the defendant.

At the trial on March 6, 1888, the case of the plaintiff in chief was to this effect:

On March 30, 1886, the plaintiff was about to drive from the place of Huston Phillips, in Chartiers township, to Canonsburg, and to pick up John F. Butler on the way. The mare had been ridden to the place of Mr. Phillips, and was to be harnessed with harness belonging to Wm. Butler and to be hitched in the latter's buckwagon. The horse on which the harness was used was about the size of plaintiff's mare. While the plaintiff was talking with Huston Phillips, the mare was harnessed and hitched by a neighboring farmer, who called out that everything was ready. The plaintiff then got into the wagon and drove some distance, when John F. Butler entered the wagon with him. Nothing occurred indicating that the mare had any difficulty working in the harness.

They approached a point where the road was narrow; 11 ft. 8 in. in width, as measured the next day. On the left side, going in the direction they were driving, there was a steep declivity extending thirty or forty feet from the edge of the road to projecting rocks which hung over a stream. At the top of the slope was a fence four or five rails high, of old rails staked, with a single rider. The worm of the fence lay along the slope of the hill from the edge of the road; that is, the bottom rail was on or near the ground at each end with nothing to keep the fence in position, if thrust against from the roadside, except the stakes, insufficient for that purpose on account of the slope of the ground on which they stood.

On the right hand side of the road the ground sloped from the roadway up under the fence and into the field above, with no rocks or stones to prevent a widening of the roadway. The soil of the roadway was a stiff limestone soil, of a character to make a good solid road when kept drained, but there was no drain to carry away the water which came down from the fields above.

As this narrow part of the road was reached coming southward, there stood a large oak tree, with its base and roots projecting nearly if not quite half way across the roadway. Its presence there had caused the heavy wagons to pass in towards the upper side of the road, then to turn to the left. From the tree onward there was a slight up grade of about one degree. The water, if it could run at all, would thus run northward in the direction of the tree, but just before it reached the tree it had turned into the roadway causing a deep mud hole through which teams having passed the tree were compelled to travel.

When the plaintiff and Butler had passed the tree they had to pass through the mud hole, then axle deep and from twelve to fifteen feet in length, when they emerged into a deep stiff mud out of which the mare could with difficulty lift her feet. Struggling along a little further in or near the middle of the roadway, suddenly the mare rose with her fore quarters, fell over to the left directly upon the fence which gave way before her, and the team slid down the steep and over the projecting rocks, the mare falling upon the bed of the stream, while the plaintiff was pitched upon the farther bank. On examination it was found that, in the opinion of the physicians, the head of the right thigh bone had been driven through the hip-socket, causing great suffering and permanent disability.

In the defendant's case in chief, testimony was introduced that at the time of the accident the roadway was from thirteen to fifteen feet wide; that in respect of condition for travel it was not worse than other country roads for the time of the year, some of the witnesses testifying that there was no mud hole at all near the tree; that but a small amount of surface drainage reached the bed of that part of the road, which was of material easily discharging the water that did reach it; that the fence at the edge of the road was a substantial worm fence of rails comparatively new; and, as evidence that the mare's fall was caused by the fact that the collar on her was so tight that it choked her, eight witnesses were called who testified to statements made by the plaintiff, some of them on the ground just after the injury, and others shortly afterward, that the accident was the plaintiff's own fault, "that he should not have put that collar on the mare, it was too small and choked her;" "when the collar was put on, he saw it was too tight, but thought it would take them to Canonsburg."

In his rebuttal case, the plaintiff denied that he had made the statements as to the tightness of the collar, attributed to him, and called a number of witnesses, among others the farmer who harnessed the mare, who testified that the collar was not too tight, but was a good fit, not only when placed upon her, but as shown by trials made after the injury.

The court, McILVAINE, P.J., after reviewing the evidence with general instructions, proceeded: --

The plaintiff claims that the road where the accident happened was narrow; that the drainage was bad; that there was a large mud hole in the centre and extending almost across the road, and that the east side of the road next to a steep bank was not sufficiently guarded. You will carefully consider all the testimony bearing upon each of the alleged defects; you will take into consideration the location of the road, the extent and kind of travel over it, the season of the year and all the relevant surrounding circumstances and then determine, first, whether the township, by its proper officers, has been guilty of negligence in that they failed to have this road, on March 30, 1886, in a condition to afford a reasonably safe passage for the traveling public along it at this point; and, second, whether this negligence, if you find it, was the proximate cause of the plaintiff's injuries. For it would make no difference how negligent the township had been or was, in not repairing and keeping the road in good condition, if the accident was not the direct result of this negligence. To illustrate: Considerable has been said about this large oak tree that stood in the side of the road, and, conceding that allowing that tree to remain there would be a neglect of duty on the part of the township, endangering the traveling public, still this negligence cannot be made the basis of the plaintiff's claim in this suit, unless the existence of the tree at that point contributed to the accident.

Now, gentlemen, if after having carefully considered all the testimony in the case bearing on this branch of it, you should find that this piece of road was in a reasonably safe condition, under all the circumstances, when the accident happened, and that the accident could not reasonably be attributed to the negligence of the township, then you need go no further in your inquiry, for your verdict under such circumstances should be for the defendant.

But if you find that the township has been guilty of negligence in this regard, then you will proceed to the second inquiry and determine whether the plaintiff, by his own negligence, in any degree directly contributed to the result. Did he do anything which preceded and had a direct connection with his going over the bank, that an ordinarily careful and prudent man would not have done, or did he leave any such thing undone that an ordinarily careful and prudent man would not have left undone?

The law that requires the township to keep its roads in a reasonably safe condition also requires the traveler to exercise the care and caution of an ordinarily prudent man while passing over these roads, and if his own carelessness in any degree contributes to the bringing about of an accident which in part could be attributed to the negligence of the township, then in such a case the township is relieved from liability, because it is only liable where the injury is the result of its own negligence and not the concurrent negligence of the township and the party injured. A traveler has a right to presume that roads are in a safe condition, but it is nevertheless his duty to keep his eyes about him and see that his wagon, horse and harness are in a condition for making the journey he proposes to make or is making, and that his horse is not allowed to go where he pleases on the road, but that he is properly driven. The driver must keep a lookout for the condition of the road over which he is driving; in other words, he must attend to the business in which he is then engaged. The degree of care required of a traveler in these matters that I have just been speaking of, is a degree of care that would be exercised by an ordinarily prudent or cautious man under the surrounding circumstances. Now, did the plaintiff in this case exercise this care? The defendant says not. They claim that the plaintiff's mare choked; that the accident would not have happened if the mare had been properly collared and had not choked.

On the one hand, it is claimed that the collar was one that had been used on another horse, that it was too small; that Mr Phillips knew this; that he has several times admitted this fact, and that he also had admitted that the mare choked and that the accident was his own fault. On the other hand, it is claimed that this collar was not too small, that the mare did not choke, and Mr. Phillips denies that he ever admitted...