Clark v. Allegheny County

• Decision Date: 07 January 1918
• Docket Number: 91
• Citation: 103 A. 552,260 Pa. 199
• Parties: Clark v. Allegheny County, Appellant
• Court: Pennsylvania Supreme Court

103 A. 552

260 Pa. 199

Clark v. Allegheny County, Appellant

No. 91

Supreme Court of Pennsylvania

January 7, 1918

Argued October 18, 1917

Appeal, No. 91, Oct. T., 1917, by defendant, from judgment of C.P. Allegheny Co., July T., 1916, No. 2397, on verdict for plaintiff in case of Robert Clark v. Allegheny County. Affirmed.

Trespass for personal injuries. Before SHAFER, J.

The facts appear by the opinion of the Supreme Court.

Verdict for plaintiff for $2,000 and judgment thereon.

Defendant appealed.

Error assigned, among others, was in refusing defendant's motion for judgment n.o.v.

The assignments of error are all overruled and the judgment is affirmed.

Lee C Beatty, with him R. W. Martin, for appellant. -- A county is a quasi-municipal corporation and in taking over and improving township roads, it acts as a governmental agency of the State, and is not answerable for injuries, unless a statute expressly places liability upon it: Bucher v Northumberland Co., 209 Pa. 618; Hubbard v. Crawford Co., 221 Pa. 438.

Even were the county's duty the same as that resting upon townships in respect to repair of its roads, there is no sufficient evidence of negligence: City of Scranton v. Hill, 102 Pa. 378; Heister v. Fawn Township, 189 Pa. 253; Auberle v. City of McKeesport, 179 Pa. 321; Monongahela City v. Fischer, 111 Pa. 9.

Plaintiff was guilty of contributory negligence in traveling upon the road in complete darkness: Auberle v. City of McKeesport, 179 Pa. 321.

James G. Nevin, with him James M. Nevin, for appellee. -- A county is liable for negligence in the maintaining of a county bridge: Wasser v. Northampton Co., 249 Pa. 25; Gehringer v. Lehigh Co., 231 Pa. 497; McCormick v. Washington Township, 112 Pa. 185.

The failure to have a guard rail was the proximate cause of the injury: Burrell Twp. v. Uncapher, 117 Pa. 353; Bitting v. Maxatawney Twp., 177 Pa. 213; Cobb v. Bradford Co., 232 Pa. 198.

The question whether plaintiff was guilty of contributory negligence was for the jury: Cobb v. Bradford Twp., 232 Pa. 198; Ackley v. Bradford Twp., 32 Pa.Super. 487.

Before BROWN, C.J., POTTER, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. CHIEF JUSTICE BROWN:

Under authority to do so, conferred upon it by the Acts of June 26, 1895, P.L. 336, and May 11, 1911, P.L. 244, the County of Allegheny took over a township road located between the townships of Forward and Elizabeth. It runs for some distance along a stream, into which a smaller one flows through a culvert forming part of the roadway. There was no guard rail on either side of the road at the point where the culvert crossed it, and the appellee while walking along the highway, on a dark and foggy night, fell from the side of it where the small stream entered the culvert, sustaining the injuries for which he seeks compensation in this action. The jury found that the county had been negligent in not properly guarding the road at the point where the plaintiff fell from it, and that he had not contributed to the accident by any carelessness of his own. From the judgment on the verdict the county has appealed.

The first reason urged in asking for a reversal of the judgment is that, as the county is a quasi-municipal corporation, and took over and improved the township road as an agent of the State, it is not answerable for any negligence in failing to keep it in proper repair and condition, because not made so by statute. By the sixteenth section of the Act of 1895 it is declared: "All such roads and highways, and all parts thereof, improved in accordance with the provisions of this act shall be deemed, taken and treated as and become public highways of the said county, and shall be subject to the control and supervision of the proper county commissioners and it shall be the duty of said several counties to keep, maintain and repair the same whenever and as often as it shall be found necessary, and all road supervisors, authorities, persons or townships heretofore required to maintain and keep in repair such roads or parts thereof, shall thereupon and thereafter cease to have any management of or control over said roads, or any part thereof, and such supervisors, authorities and townships are hereby relieved from all duty and responsibility in and about the care, maintenance and repair of all roads improved under this act and becoming county roads"; and by the first section of the Act of 1911 it is made the duty of a county to maintain and keep in repair any road or highway constructed or improved under that or any former act. While neither of these provisions expressly imposes any liability upon a county for neglect to maintain properly a township road which it takes over, what has been held as to the liability of the county for failure to maintain its bridges is equally true of its liability for failure to maintain its roads. "'In this state the duty (to repair) is statutory, and therefore we must look to the statute for its nature and extent': Rapho v. Moore, 68 Pa. 404. The Act of June 13, 1836, P.L. 551, required public roads, including bridges, to be 'constantly kept in repair.' The Act of April 13, 1843, P.L. 221, provides: 'It shall be the duty of the county commissioners . . . to repair all bridges erected by the county, and to pay the expenses of such repairs out of the county treasury.' The Act of March 30, 1905, P.L. 81, makes a precisely similar provision as to 'All county bridges heretofore erected or to be hereafter erected.' Although counties are not by these statutes expressly made liable for injuries resulting from neglect properly to maintain their bridges, yet we have uniformly and long held that a mandate to repair carries with it a responsibility, which, if neglected, may give rise to such a liability; and the thought running through our cases is that these...