Gehringer v. Lehigh County

• Decision Date: 01 May 1911
• Docket Number: 252
• Parties: Gehringer v. Lehigh County, Appellant
• Court: Pennsylvania Supreme Court

80 A. 987

231 Pa. 497

Gehringer v. Lehigh County, Appellant

No. 252

Supreme Court of Pennsylvania

May 1, 1911

Argued January 31, 1911

Appeal, No. 252, Jan. T., 1910, by defendant, from judgment of C.P. Lehigh Co., Sept. T., 1909, No. 34, on verdict for plaintiff in case of Annie E. Gehringer v. Lehigh County. Affirmed.

Trespass to recover damages for death of plaintiff's husband. Before TREXLER, P.J.

The facts are stated in the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $5,000. Defendant appealed.

Errors assigned were various instructions set forth in the opinion of the Supreme Court.

The judgment is affirmed.

Reuben J. Butz, with him Claude T. Reno, county solicitor, for appellant. -- There is no liability for wrongful exercise of discretionary powers: Lehigh County v. Hoffort, 116 Pa. 119; Trescott v. Waterloo, 26 Fed. Repr. 592; Carr v. Northern Liberties, 35 Pa. 324; Fair v Philadelphia, 88 Pa. 309; Bear v. Allentown, 148 Pa. 80; Cooper v. Scranton, 21 Pa.Super. 17; Fairlawn Coal Co. v. Scranton, 148 Pa. 231; Collins v. Philadelphia, 93 Pa. 272; Mills v Brooklyn, 32 N.Y. 489; Wilson v. The Mayor, etc., of New York, 1 Denio, 595; Urquhart v. Ogdensburg, 91 N.Y. 67; Lansing v. Toolan, 37 Mich. 152; Hines v. Lockport, 50 N.Y. 236.

In Pennsylvania there is no common-law duty of counties to repair highways, or bridges or sidewalks; such duty and consequent liability must be imposed by statute, or be held not to exist: Williamsport v. Lycoming County, 34 Pa.Super. 221.

The identical question under consideration has been before the courts of last resort of the states of Indiana and Michigan, and their decisions are at least of persuasive force: Board of Com'rs of Vermillion County v. Chipps, 131 Ind. 56 (29 N.E. Repr. 1066); Fulton Iron & Engine Works v. Kimball Twp., 52 Mich. 146; Stebbins v. Keene Twp., 60 Mich. 214; Woodbury v. Owosso, 64 Mich. 239.

The measure of care and prudence demanded of county commissioners in the care and supervision of county bridges is the care and prudence exercised by ordinarily prudent men in their own affairs, and where the defect in a lawful structure is latent the officers must have actual notice: Childs v. Crawford County, 176 Pa. 139; Ford v. Roulet Twp. 9 Pa. Superior Ct. 643; Whitmire v. Muncy Creek Twp., 17 Pa.Super. 399; Hardin County Commissioners v. Coffman, 48 L.R.A. 455.

Thos. F. Diefenderfer, with him Francis G. Lewis, for appellee. -- The bridge was not properly maintained: Smith v. Muncy Creek Twp., 206 Pa. 7; Clulow v. McClelland, 151 Pa. 583; Berks County v. Reading City Pass. Ry. Co., 167 Pa. 102; Rapho v. Moore, 68 Pa. 404; Rigon v. Schuylkill County, 103 Pa. 182; Humphreys v. Armstrong County, 56 Pa. 204.

Before BROWN, MESTREZAT, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The verdict was for the plaintiff and the defendant has appealed. The principal question involved is stated by appellant as follows: "Is a county liable for damages suffered through a failure of the part of the floor system of one of its bridges while there was being taken across it a load which, in respect of weight and otherwise, was different in character from the ordinary and usual travel over the highway in the locality of the bridge at the time it was built, but not different from such travel at the time of the accident, if the county commissioners properly maintained the bridge in accordance with its original design and plan of construction?"

The county bridge in question was erected prior to the year 1840 where a public road, which has since become a main throughfare, crossed a stream, about a mile and a half beyond what is now the city of Allentown. At that time Allentown was a mere village with rural surroundings; it had gradually grown and extended, however, until at the time of the accident its built up portions were within three blocks of the southern end of the bridge, with a scattering of houses and a number of industries still nearer. The territory on the other side of the bridge had likewise seen a large increase in population; towns and villages had come into existence; car wheel, cement, hardware and other manufactories had been erected and actively operated for some years prior to the accident. The bridge was 118 feet long by 19 feet wide and consisted of a wooden superstructure resting on stone pillars and abutments. It contained ten spans, each 11 feet in length, and 5X7 hemlock stringers, 11 feet in length laid 33 inches apart, supported the planks of the floor. The structure had not been rebuilt since its erection, the floor system remained of the original type, and the stringers in the immediate part of the bridge which broke down and caused the accident had never been replaced or repaired.

On January 26, 1909, Chester Gehringer, the husband of the plaintiff, and two other men, were riding across the bridge on a motor truck containing a load of flour, the truck and load together weighing about 14,000 pounds; when they reached the third panel from the northern end that part of the structure suddenly gave way and precipitated the truck into the stream below, causing the plaintiff's husband and one of his companions to be drowned. The accident was due to the giving way of the stringers. Upon investigation it was found that one of the broken stringers in the panel through which the motor truck fell contained dry rot, which was not visible from the outside.

The defendant's testimony was to the effect that early in August, 1906, workmen employed in making repairs to the bridge had removed certain of the planks and tested the stringers, by pounding or jabbing them with a crowbar, a hatchet, or with an eight pound iron hammer, and that the commissioners had then substituted new stringers for all those which they deemed unsound; that in 1908, about five months before the accident, repairs were made by a carpenter and his three sons, who removed all of the planks upon the bridge excepting those in the two panels on the southern end, tested the stringers in a like manner, and replaced those which seemed to be unsound.

The defendant contended that, if at the time the bridge was built it was sufficiently strong to care for the then ordinary and usual travel over the highways in that locality, and if the county had maintained the structure in good condition according to its original carrying capacity and construction, the commissioners had performed their full duty; further, that, if the weight of the motor truck and its contents was greater than the load usually and ordinarily transported over the highways in the vicinity at the time the bridge was built, though not greater than the usual and ordinary loads at the time of the accident, the failure of the commissioners to strengthen the bridge in order to take care of such greater loads would not be negligence. But the trial judge refused so to charge. On the contrary he instructed the jury that the legislature had recognized the right to operate motor vehicles on the roads of the state, and that when such vehicles, of the description and weight in ordinary use in a section of the country, have been running for several years, it becomes the duty of the county authorities to strengthen the bridges so as to withstand the increased strain and provide against injuries from such ordinary use of the highways. It was left to the jury to say what was the ordinary use of the roads in the vicinity of the bridge in this case, the court adding: "Had the carrying of such loads as this auto had on that day become ordinary and usual? If it had then the duty of the commissioners was to provide a bridge sufficient to carry it. When I say provide a bridge, I do not mean a new bridge. The commissioners are not charged with the rebuilding of bridges . . .; all that they are charged with is the maintenance of the bridge and all that they could be charged with here is that if the use of the auto trucks carrying the weight this one did, and with the formation of the body this one had, I mean in regard to the amount of the pressure exerted in any particular place, become common, then it would be their duty to strengthen the bridge to meet the changed condition of travel, not to reconstruct the bridge, but merely to strengthen it so as to accommodate that travel." And, "If you find these auto trucks of the size that this auto truck was were common and ordinary means of conveyance in the neighborhood of this bridge and over the roads leading to and from it, then your verdict should be in favor of the plaintiff. If you find they were not so, then you should find in favor of the defendant." These instructions and the refusal to charge as requested by the defendant constitute the specifications of error 1-3 and 9-13 inclusive, and raise the question involved stated at the head of this opinion. We shall dispose of all of these assignments in considering the points covered in that question.

In the opinion refusing a new trial the learned president judge of the court below says: "The trial . . . established the fact that auto trucks of the weight and general character of the one in which the decedent was at the time of the accident were in general use in the locality of the bridge . . . . An open bridge . . . bears the imperative duty on the authorities charged with its maintenance to keep it in such a condition that the public may safely use it. If this involves a strengthening of the floor, then it becomes the duty to strengthen it. They (the commissioners) may not build a substantially new bridge, but . . . they may make repairs and strengthen an old structure so long as the general character of the bridge remains the same. In some states the courts have held that the authorities...