Closser v. The Township of Washington

• Court: Pennsylvania Superior Court
• Writing for the Court: BEAVER, J.
• Citation: Closser v. The Township of Washington, 11 Pa.Super. 112 (Pa. Super. Ct. 1899)
• Decision Date: 28 July 1899
• Docket Number: 20-1899
• Parties: J. W. Closser v. The Township of Washington, Appellant

11 Pa.Super. 112

J. W. Closser v. The Township of Washington, Appellant

No. 20-1899

Superior Court of Pennsylvania

July 28, 1899

Argued April 17, 1899 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Greene Co.-1897, No. 168, on verdict for plaintiff.

Trespass. Before Crawford, P. J.

It appears from the evidence that plaintiff and another man named Huffman were riding along the township road at night. Plaintiff was riding a somewhat spirited young mare and there was some evidence tending to show that she had a habit of scaring easily. He was holding the reins of the bridle in his left hand, his right being in his pocket. While so riding a noise which the riders thought was a muskrat jumping into the stream with a splash, scared the mare of the plaintiff, causing her to jump back behind Huffman's horse. There was evidence tending to show that the mare, then lunging forward, plaintiff struck her with a whip or strap and began abusing her. The mare made several leaps forward going about forty feet and then went over the lower side of the road falling upon the plaintiff's leg and fracturing the same. There was evidence tending to show that at the point of the accident the road was straight and smooth, about ten to twelve feet wide where the mare first took fright, and upwards of ten feet where the accident occurred. It was also in evidence that plaintiff was familiar with the road, having taken a three years' contract, in force at the time of the accident, to keep this road in repair; that at the place where the accident occurred the road was what is known as a side cut road -- cut into quite a steep hill on the east side, and the run or stream flowed in toward the road on the lower side. In order to protect the road from being washed away by the stream, a rough stone wall had been laid up extending for a distance of about forty feet along the lower side of the road between the road and the run. The mare scared at or near the south end of that wall and did not go over the bank until she had entirely passed the north end of said wall. Surveys and photographs of the road were put in evidence by both parties. [At the trial defendant offered to show, John Huffman being on the stand, with a view of following the evidence with that of other witnesses familiar with the road, that the road where the accident occurred was not a dangerous place and that it was not necessary to erect a barrier along the same. Objection was made and sustained to this offer by the court and bill sealed.]

J. W. Closser, the plaintiff, being on the stand, counsel proposed to ask the witness the following question, which was allowed under objection:

[" Q. I ask the witness to state what damage he has suffered, in his opinion, as the result of this accident, taking into consideration the doctors' bills he has paid and the pain he has suffered up to the present time and from the care that had to be taken of him, the loss to his business and all the damages suffered by him as the result of the accident." ]

The plaintiff submitted the following points:

[1. If the jury believe from the evidence in the case that J. W. Closser on the night of November 3, 1896, in riding on the public road on horseback, in Washington township, at the place described by the witnesses, and that his horse became frightened and plunged over the embankment at the side of the road, falling upon the person of the plaintiff, thereby breaking his right leg and fracturing his ankle; and if they further find from the evidence that the road at the place of the accident was dangerous by reason of the steepness and height of the embankment, the same being without barriers or guard rails, and being within and upon the public highway; and that the said accident occurred without any negligence on the part of the said Closser, then their verdict should be for the plaintiff for such damages as the jury may find from the whole of the evidence in the case. Answer: That point is correct and is affirmed.]

[2. In view of the fact that the ordinary horse will, at times, scare and take fright, and that his movements when frightened are wholly unreasonable and unforeseeable, it is for the jury to determine what provision shall reasonably be made by the township for the safety of travelers upon the public highway, and it being the duty of the township to provide a reasonably safe highway for ordinary travel by the ordinary horse, then, if the jury should believe from the evidence that the proximate and direct cause of the plaintiff's injury was the neglect of the township to put up barriers at the place where his horse went over the embankment, then their verdict should be for the plaintiff for such damages as he is entitled to under the evidence. Answer: That position is correct and is affirmed. If the facts support the point it is correct.]

[6. If the jury believe from the evidence that the plaintiff knew of the condition of the road when he undertook to ride over it, and was very familiar with it, his riding over it at the time of the accident is not such contributory negligence as to prevent his recovery, when there was no other way for him to take. Answer: That point, I think is correct, the mere fact of his riding over it would not amount to contributory negligence. You would have to determine that fact from what he did in riding over it and from all the facts appearing in the evidence as to his action and conduct there at the time. The mere fact the road may be dangerous, does not of itself make a man guilty of contributory negligence in passing along it; he may have no other way to pass. That is a question for the jury to determine.]

Defendant submitted among others the following point, which was refused by the court:

[1. The plaintiff himself having testified that his mare became frightened at a noise made by some animal in the run near the side of the road and thereby becoming unmanageable went off the road and fell upon the plaintiff, caused the injuries of which he complains. Under this state of facts the injuries of the plaintiff were produced by an intervening and independent cause for which the defendant was not responsible and the plaintiff cannot recover. Answer: Now that point is refused, because it requires the court to say here that the fright of the horse was occasioned by an independent and intervening cause. That we will not say to you, gentlemen of the jury, as a matter of law. That is a question we submit for your determination, leaving the question with you with such instructions as the Supreme Court has given, saying the fright of a horse under ordinary circumstances is to be expected as an ordinary circumstance. Now you can determine that question yourselves.]

The court charged the jury, inter alia, as follows:

[It is a doctrine of law that where an injury or accident of this kind occurs, to make the parties charged liable, it must have been the result of negligence on the part of the party charged. If there was contributory negligence on the part of the party claiming damages, the township would be relieved, that is if the facts set out show that to be the true theory of the matter. In determining the question of negligence you are to take into consideration the road as described by the different witnesses, the width, the height of the embankments, the grade and all the circumstances that have been testified to here as to the time, manner and place of this accident, and from those circumstances, you are to make up your judgment in this case.] . . . .

[In coming to the question here as to what was the proximate cause of the accident, you are to keep in mind these facts: that in order to make the township liable, their negligence must be the proximate cause of the accident. The courts have said that the proximate cause is the immediate or direct cause without other agency intervening that leads to the production of the result, and if there was an intervening independent cause here for which the township was not responsible or could not foresee, or would not be obliged to expect, the township would be relieved. That will be the question for you to decide here, whether there was such a cause or not. It is contended here that the fright of this horse was produced by the splash of some animal jumping into the run. Gentlemen of the jury, would that be such a cause, outside and independent, as would prevent this plaintiff from recovering here? That will be a question for you to decide. But in deciding that point you must remember what the Supreme Court of this state has said in the language we have already called your attention to. That the fright of a horse is an ordinary circumstance that should be foreseen and expected by the township authorities, and the conduct of a frightened horse may be insane, unreasonable and unlooked for, is something that must also be expected. If you should decide that the circumstance which occasioned the fright of this horse was of this character, and not an outside, independent or intervening cause, then that position as to an independent cause would not be well taken.] . . . .

[It is not pretended by the defendant that there were any such barriers there. The defense is that the road was in such condition that it did not require them for the safety of the traveling public, and that the cause of the accident was not the condition of the road, but the conduct of the plaintiff in making the horse uncontrollable.]

Verdict and judgment for plaintiff for $ 675. Defendant appealed.

Errors assigned among others were in permitting plaintiff on the stand to state the amount of damages sustained by him by reason of the accident, reciting...