Forks Township v. King

• Decision Date: 08 May 1876
• Citation: 84 Pa. 230
• Parties: Forks Township <I>versus</I> King.
• Court: Pennsylvania Supreme Court

84 Pa. 230

Forks Township versus King.

Supreme Court of Pennsylvania.

March 31, 1876.

May 8, 1876.

March 31st 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ. WILLIAMS, J., absent

Error to the Court of Common Pleas of Sullivan county: Of July Term 1875, No. 49 E. M. Dunham, for plaintiff in error.—When the plaintiff knew of a perfectly safe road running side by side with the dangerous one, it was negligence in him not to take the former, and the evidence that Hoagland knew of such a safe road should have gone to the jury to determine the question of contributory negligence: Whart. on Neg., sect. 400, and cases cited.

H. W. Patrick, for defendant in error.—A township is bound to keep its highways in repair at all times, and cannot suffer them to fall into decay, and compel travellers to choose between making long detours or the risks of accident. An open highway is an invitation to the public to travel upon it, and the fact that the traveller knows it is dangerous does not make it his duty to choose another route: Humphreys v. Armstrong County, 6 P. F. Smith 204; Pittsburgh v. Grier, 10 Harris 54.

The owner of a horse lent without hire is not responsible for the negligence of the borrower, and as there was no relation of master and servant between the plaintiff and Hoagland, the former cannot be affected by the negligence of the latter, if it did contribute to the accident: Bard v. Yohn, 2 Casey 482.

Mr. Justice WOODWARD delivered the opinion of the court, May 8th 1876.

This action was brought by the plaintiff below to recover damages for the loss of a mare belonging to him, in the possession of Ellis Hoagland, caused, as was alleged, by the unsafe condition of the road over which she was being driven. Hoagland, with this mare and another horse of his own, hitched to a loaded wagon, was returning from New Albany to Forksville on the 24th of February 1872. In descending a mountain four or five miles from Forksville, along a dug-way, the wagon slid off the road, dragging the horses with it, and the mare of the plaintiff was killed either by the fall or by choking to death before she was extricated. The road was ten or twelve feet wide, and the upper side was from six to ten inches higher than the lower, with a uniform descending inclination from the bank to the edge on the lower side. At this point there were no guard-logs along the edge for a distance of thirty or forty feet. There was a spring on the upper side with a sluice-way across, partially stopped up, and the water flowed over the highway and froze on its surface. Rain had fallen the day before the accident, the weather had become suddenly cold and ice had formed to an extent to make travelling dangerous. For ten days previously, however, there was evidence that ice had been accumulating, and it was alleged that the duty of the supervisors to keep the highway in a safe condition had been wholly neglected.

On the trial the defendant's counsel offered in evidence "a draft of the roads in the vicinity of where the accident...