Wagner v. Township of Jackson

• Decision Date: 03 March 1890
• Docket Number: 231
• Citation: 133 Pa. 61,19 A. 312
• Parties: ELLEN T. WAGNER v. TOWNSHIP OF JACKSON
• Court: Pennsylvania Supreme Court

19 A. 312

133 Pa. 61

ELLEN T. WAGNER v. TOWNSHIP OF JACKSON

No. 231

Supreme Court of Pennsylvania

March 3, 1890

Argued February 20, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF LEBANON COUNTY.

No. 231 January Term 1890, Sup. Ct.; court below, No. 164 September Term 1887, C.P.

On September 8, 1887, Ellen T. Wagner brought trespass against the township of Jackson, to recover damages for personal injuries alleged to have been incurred by reason of a defect in a public highway. Issue.

At the trial on November 12, 1888, a verdict was rendered and judgment entered in favor of the plaintiff for $3,000, and on writ of error to No. 271 January Term 1889, the judgment was reversed with a venire de novo: Jackson Tp. v Wagner, 127 Pa. 184.

At the second trial on November 11, 1889, the case presented showed that on July 9, 1887, the plaintiff was driving with her sister and three children in a buggy along Mill street, a public highway in Jackson township; that she was going in a westward direction, and had passed a pile of stones and a depression in the road, and when about 120 feet beyond the stone pile two donkeys were met in the road, one of which was running loose; that the plaintiff's horse became frightened, turned short around and broke off the left forward wheel of the buggy; that facing eastward the horse ran down the road and upon the stone pile and hole in the road, where the buggy was overthrown and plaintiff injured. The plaintiff testified that before they reached the stone pile she was getting the horse under control.

The court, McPHERSON, J., charged the jury in part, as follows:

You understand that up to this point the steps of your inquiry are these: First, was the plaintiff guilty of any contributory neglience? You understand that if she were, she cannot recover. In the second place, if she was not herself negligent and contributed to her injury, was the township negligent? Was there a road here sufficient for all the ordinary purposes of ordinary travel in the ordinary manner? If there was not, then the township may be responsible. The jury then come to the question, whether her injury was due to these defects in the highway; to the fact that there was not there a road of this kind, such as the supervisors were bound to provide for the ordinary traveling public. [Was her injury due to that cause, either in whole or in part? For, if her injury was caused in part by the accidents that befell her and in part by the negligence of the supervisors of the township, then the township is responsible. But, upon the other hand, if her injury was caused simply by her accidents and not by the carelessness and negligence of the supervisors, then the township would not be responsible and she could not recover. Those are the questions which will determine whether or not she is entitled to recover.] . . . .

At this point I will answer the defendant's points, since they bear upon the questions upon which I am speaking:

1. If the jury believe the horse was frightened by the donkeys, and in turning around broke the wheel of the buggy, and that, on account of the broken wheel, part of the buggy axle was on the ground and prevented the driver from guiding the horse to the right of the road in order to avoid the stone heap, then the plaintiff cannot recover.

Answer Understanding this to be a request for an instruction that the township is not liable if the injury received was due to the fright of the horse, the broken wheel and the dragging axle, and not to a defect in the highway, it is affirmed.

4. If the jury believe, from the evidence, that, notwithstanding the fright of the horse at the donkeys if the wheel of the buggy had not been broken and the axle scraped the ground and impelled the horse and buggy toward and on the stone heap and hole, then the injury would not have occurred, the plaintiff cannot recover.

Answer: Understanding this to be a request for an instruction that the township is not liable, notwithstanding the fright of the horse, if the injury received was due to the broken wheel and the dragging axle, and not to a defect in the highway, it is affirmed.

5. The general rule of law is, and this case is no exception to the rule, that a man is answerable for the consequences of the fault which are natural and probable; if the fault happens to concur with something extraordinary and not likely to be foreseen, he will not be answerable.

Answer: As a general rule, this is affirmed.

6. Where, as in this case, the facts are undisputed and the intervening agency causing the injury is manifest, the court should direct the jury to find for the defendant.

Answer: This is refused; there are questions of fact for the jury.

The jury returned a verdict in favor of the plaintiff for $1,500. A new trial having been discharged, and judgment entered on the verdict, the defendant took this appeal assigning as error:

1. The portion of the charge embraced in []...