24 A. 207 (Pa. 1892), 81, Herr v. City of Lebanon

• Judge: Before PAXSON, C.J., STERRETT, GREEN, WILLIAMS and HEYDRICK, JJ.
• Parties: Herr, et ux., v. City of Lebanon, Appellant
• Docket Number: 81
• Date: 16 May 1892
• Court: Pennsylvania Supreme Court
• Citation: 149 Pa. 222,24 A. 207

Page 207

24 A. 207 (Pa. 1892)

149 Pa. 222

Herr, et ux.,

v.

City of Lebanon, Appellant

No. 81

Supreme Court of Pennsylvania

May 16, 1892

Argued: February 16, 1892

Appeal, No. 81, July T., 1891, by defendant, from judgment of C.P. Lebanon Co., on verdict for plaintiff, Joseph Herr and Clara, his wife, in right of said wife.

Tresspass for personal injuries.

The verdict was for the plaintiff in the sum of $1,950, subject to the opinion of the court upon the point reserved, viz.: Whether there was any evidence of negligence on the part of the city to go to the jury. The two questions submitted to the jury and their answers thereto and the other facts appear by the opinion of the Supreme Court.

Defendant's points and the answers thereto were, inter alia:

"3. To render the city of Lebanon liable in this case for an injury by a defect in the highway it must have been the sole efficient cause of the injury, and if the jury find from the evidence that this accident to plaintiff was caused by the uncontrollable struggle of the choking horse, or from this cause concurring with a defect in the highway, then their verdict must be for the defendant, the City of Lebanon." Answer: "Refused. If the injury was caused by an ordinary accident for which the plaintiff was not responsible, concurring with a defect in the highway due to the defendant's negligence, the defendant would be responsible."

"4. That if the jury find from the evidence that the horse, from no defect in the roadbed, fell and choked, and thereby became uncontrollable and blindly plunged over the bank, and if they further find that the horse would not have turned from the way or gone over the bank but for such choking, then their verdict must be for the defendant." Answer: "Affirmed, if the road was in ordinary condition for ordinary travel."

"5. Under all the evidence the verdict of the jury must be for the defendant." Refused.

Errors assigned were, (1-3) the answers to the above points quoting them.

The judgment in this case is reversed.

W. M. Derr, Frank E. Meily with him, for appellant. -- This case is ruled by Chartiers Township v. Phillips, 122 Pa. 601.

The answer to defendant's fourth point was misleading. If the absence of the barrier was not the proximate cause of the accident, as abundantly appears from the testimony of all the witnesses, then it had nothing to do with the injury, and the court should have affirmed the point unqualifiedly.

Grant Werdman, Luther F. Hock with him, for appellee, cited Jackson Township v. Wagner, 127 Pa. 195; Hey v. Phila., 81 Pa. 44; Lower Macungie Township v. Merkhoffer, 71 Pa. 276; Newlin Township v. Davis, 77 Pa. 317; Borough of Pittston v. Hart, 89 Pa. 389; Burrell Township v. Uncapher, 117 Pa. 363; Plymouth Township v. Graver, 125 Pa. 36; Shearman and Redfield on Negligence, 10; Am. & Eng. Enc. of Law, vol. 4, page 41; 2 Thompson on Negligence, 1063-1067-1085, § 3; 1087, § 4; 106 Mass. 458; 8 Am. Rep. 354; B. & O.R.R. Co. v. Sulphur Spring School District, 96 Pa. 65, and Phila. & Reading R.R. Co. v. Anderson, 94 Pa. 358, 359, 360.

The ruling in Chartiers Township v. Phillips was that, if the accident was solely produced by an intervening and independent cause for which the defendant was not responsible, there could be no recovery. If the injury was caused by an ordinary accident for which the plaintiff was not responsible, concurring with a defect in the highway due to the defendant's negligence, the defendant would be responsible: Wagner v. Jackson Township, 133 Pa. 61, in which case Chartiers Township v. Phillips was cited without effect.

Before PAXSON, C.J., STERRETT, GREEN, WILLIAMS and HEYDRICK, JJ.

OPINION

[149 Pa. 224] MR. JUSTICE WILLIAMS:

The plaintiff was injured by an accident happening on one of the streets of the city of Lebanon. She seeks by this action to hold the city responsible for the consequences of the accident on the ground that the proximate cause of her injury was the negligence of the city. The circumstances are told by the driver of the omnibus in which she was a passenger, and whom she called as a witness for that purpose. He says that there were [149 Pa. 225] four adults besides himself in and upon the omnibus, five children and some household goods, including a sewing machine. It was drawn by one horse. The route passed up and along the side of a hill. On the upper side of the street was a high bank. On the lower side, a steep descent of several feet. There was no guard rail along the edge of the declivity. The driver describes the street as smooth,

Page 208

hard, twenty feet wide, and "well piked." While ascending the hill in the middle of the roadway the horse suddenly fell. It struggled to regain its feet, but failed. Whether the weight of the load in connection with the grade of the hill was too much for the strength of the horse, or the horse was choked by the harness, or taken suddenly ill, no one ventures an opinion. It continued struggling until it had moved...