23 A. 204 (Pa. 1892), 229, Hill v. Tionesta Township
|Citation:||23 A. 204, 146 Pa. 11|
|Opinion Judge:||JUSTICE GREEN|
|Party Name:||C. A. HILL v. TOWNSHIP OF TIONESTA|
|Attorney:||Mr. T. F. Ritchey, for the appellant: Mr. E. L. Davis, for the appellee:|
|Judge Panel:||Before PAXSON, C.J., STERRETT, GREEN, CLARK, WILLIAMS, McCOLLUM and MITCHELL, JJ.|
|Case Date:||January 04, 1892|
|Court:||Supreme Court of Pennsylvania|
Argued: October 8, 1891
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF FOREST COUNTY.
No. 229 October Term 1891, Sup. Ct.; court below, No. 9 December Term 1889, C.P.
On October 16, 1889, C. A. Hill brought trespass against Tionesta Township, to recover damages for injuries to the plaintiff's horse, alleged to have resulted from negligence on the part of the defendant township. [*] The defendant's plea was not guilty.
At the trial, on December 18, 1890, the following facts were shown:
For many years a public road had been in existence and in use along the west bank of the Allegheny river within the limits of the defendant township. It occupied a narrow strip of ground, bounded, on the side away from the river, by a steep bank. In 1866, a railroad was constructed along the river, in many places encroaching upon the bed of the township road.
At the time and place of the accident to the plaintiff's horse, the latter road was so narrow that there was room for but a single wagon track between the ends of the railway ties and the river bank, and in using it the wheels of a vehicle would pass within one foot of the edge of that bank. The surface of the roadway was about three feet below the level of the railway track, and about sixteen feet above the river. There was no barrier or guard on the river side of the road. The roadway was in bad condition, deep ruts having been worn in it by the travel upon it.
In December, 1887, the plaintiff had occasion to haul a number of loads of lumber between two points connected by the said road. The weather at that time was freezing at night and thawing in the daytime. After safely sending two loads over another road, from one and one half to two miles longer than the road in question, and several loads over this road, he sent a team with a heavy load of lumber by the latter road, in charge of his brother, George T. Hill. While passing along the narrows, at the place between the railroad and the river above described, one of the horses stepped into a deep rut or hole in the wagon track, and in the endeavor to extricate itself fell over the river bank and was injured. The driver testified that he had not seen this rut until the horse got into it, although he had hauled several loads over that road within two or three days.
The plaintiff and his drivers testified that the road, at the place of the accident, had for sometime been known to them to be in a dangerous condition, and was regarded by them as an unsafe road to drive on. Parts of their testimony on this subject are quoted in the opinion of the Supreme Court, infra.
William Hood, a witness for the defendant, testified that before the plaintiff's teams commenced hauling lumber, the plaintiff spoke to the witness, under the impression that the latter was one of the road commissioners of the township, and asked him to fix the road, stating that he had been over it and found it in bad condition and would like to have something done to it, as he was about to do some hauling over it; that the witness remarked that a man would be crazy who would undertake to do hauling over that road, and advised the plaintiff to take the other one, but the plaintiff said it was too far around and he would rather take his chances on this road. The plaintiff was not called to deny this conversation.
In the plaintiff's rebutting case, George T. Hill who had testified in plaintiff's case in chief to having hauled a load over the other road, prior to the trip on which he met with the accident, was recalled and testified that a part of the other road referred to was in very bad condition: "Q. Was it a dangerous road? A. Yes, sir. Q. How was it as compared with the road along the narrows here, as to danger? A. I considered it more so; I was afraid to drive it, it was very sideling, and parts of it very bad. Q. Was this before or after the injury? A. Before." On cross-examination, the witness stated that he and Truman Hill, plaintiff's other teamster, first hauled several loads over the river road, and then hauled one load each over the other road, after which they went back to the river road.
At the close of the testimony, the court, BROWN, P.J., charged the jury in part as follows:
The principal question is the right of the plaintiff to recover, and [I will say a word in regard to that road, which perhaps ought to have no influence upon you, but I think it a matter of interest to the public. It appears that many years ago, just how many I don't know, the railroad took possession of a public road in Tionesta township. The law provides a method by which the officers of the township may compel the railroad, -- no matter at what cost, and I think no matter after what expiration of time, -- to build a road equally as good as the road that they took. It does not appear that any steps have been taken, as against the railroad, to...
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