Finnegan v. Township of Foster

• Decision Date: 12 July 1894
• Docket Number: 322
• Citation: 29 A. 780,163 Pa. 135
• Parties: Margaret Finnegan v. Foster Township, Appellant
• Court: Pennsylvania Supreme Court

29 A. 780

163 Pa. 135

Margaret Finnegan v. Foster Township, Appellant

No. 322

Supreme Court of Pennsylvania

July 12, 1894

Argued April 9, 1894

Appeal, No. 322, Jan. T., 1893, by defendant, from judgment of C.P. Luzerne Co., Dec. T., 1889, No. 260, on verdict for plaintiff. Affirmed.

Trespass for personal injuries. Before RICE, P.J.

At the trial it appeared that, on Sept. 16, 1889, plaintiff, while in company with a friend who was driving, was injured at a bridge in Foster township.

The court charged in part as follows:

"The complaint is that the township was negligent in that the bridge in question was not properly guarded by guard rails that, at least, there was no guard rail on the left-hand side. If, therefore, the guard rails were up as defendant alleges, it necessarily follows that the plaintiff and Mrs Mowrey did not and could not go off the bridge as they allege; and if they did not go off the bridge in the manner alleged by them, the plaintiff cannot recover in this action and it is immaterial how the accident occurred. Were there guard rails up, as alleged by the defendant? Upon that question of fact considerable testimony has been produced, and without further remark we will leave it to be decided by you in accordance with the weight of the credible testimony in the case. If there were no guard rails was the township guilty of negligence in not providing them in the first instance, or in not replacing them after they had been broken down, if they were provided in the first instance? If proper guard rails were originally provided, but were broken down or removed through no fault of the defendant or its officers, then the inquiry would arise, did they have actual notice that they were down, or had they been down for such length of time that in the exercise of the care required of supervisors they ought to have known that they were down? The court does not declare, as an absolute, unqualified rule of law, that it was the duty of the township to erect and maintain guard rails on this bridge or its approaches. Whether it was their duty, and whether the omission to provide barriers at the side of the bridge was negligence, is a question of fact to be decided by the jury. In some cases it would be negligence; in other cases it might not be. The question is to be determined by the jury on a fair and reasonable view of all the facts and circumstances of the case, taking into consideration the length of the bridge, its width, its height, the nature of the approaches, the amount of the travel, and all of the circumstances. Upon this question we quote from a decision of the Supreme Court in the case of Plymouth Township v. Graver, 125 Pa. 32.". . . .

Plaintiff's point was among others as follows:

"It is the duty of Foster township to keep all bridges, and dangerous approaches thereto, on her public roads, so guarded as to protect travelers in passing over them, and failure on her part in this respect is negligence, and for injury resulting therefrom, without proof of concurrent negligence on the part of the plaintiff, the township is liable." Affirmed. [1]

Defendant's points were among others as follows:

"2. There is no sufficient evidence in this case to show, or from which the jury have the legal right to infer, that the defendant was guilty of any omission of duty, the absence of which tended to cause the accident or injury suffered by the plaintiff in this case, therefore the verdict of the jury should be in favor of the defendant." Refused. [2]

"4. If the jury find from the evidence that Mrs. Mowrey, the person driving the vehicle, in whose custody the plaintiff had placed herself, was careless or imprudent in starting out to cross the highway and the bridge in question on this dark night with knowledge of the location and point of accident in question, and did not take ordinary precautions for observing the way over the point she claims she knew was dangerous, then the plaintiff is not entitled to recover. Answer: We decline to charge as requested in that point. It might be a correct statement of the law if this were a suit by Mrs. Mowrey; but we do not think her negligence here, if she was guilty of negligence, could be imputed to the plaintiff in this case." [3]

6. Request for binding instructions. Refused. [4]

Verdict and judgment for plaintiff for $1,800.

Errors assigned were (1-4) instructions, quoting them.

The judgment is affirmed.

E. Lynch, John D. Hayes with him, for appellant, cited: Monongahela City v. Fisher, 111 Pa. 9; Scranton v. Hill, 102 Pa. 378; Lynch v. Erie, 151 Pa. 380.

D. L O'Neill, J. L. Lenahan with him, for appellee, cited, as to liability of township: Act of June 13, 1836, §§ 6, 27, P.L. 556; May 25, 1878, P.L. 150; Newlin Twp. v. Davis, 77 Pa. 321; Township v. Montgomery, 95 Pa. 444; Pittston v. Hart, 89 Pa. 389; Hey v. Phila., 81 Pa. 44; Aston v. McClure, 102 Pa. 322; Corbalis v. Twp., 132 Pa. 9-12; Easton v. Neff, 102 Pa. 474; Kelley v. Twp., 154 Pa. 440; Ewing v. Twp., 146 Pa. 309; Altoona v....