Hey v. Philadelphia
| Decision Date | 13 March 1876 |
| Citation | 81 Pa. 44 |
| Parties | Hey <I>versus</I> Philadelphia. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.
Error to the District Court of Philadelphia: Of January Term 1874, No. 267.
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R. P. White, for plaintiff in error.—A traveller has a right to presume that a highway in use is safe, and even if he knows of defect in it, he is only bound to use ordinary care in avoiding the danger: Shearman & Redfield on Negligence 413, 414, and cases cited; Humphreys v. County of Armstrong, 6 P. F. Smith 204. A town bound to provide for the safety of travellers ought particularly to guard against happening of accidents at railroad crossings: Orcut v. Kittery Point Bridge Co., 53 Maine 500. They are not ordinarily bound to fence roads, but are bound to fence at places otherwise unsafe for travellers exercising ordinary care: Collis v. Dorchester, 6 Cush. 396. Whether fence is necessary is a question for the jury: Booker v. Anderson, 35 Ill. 65; Hyatt v. Rondout, 44 Barb. 385; Norris v. Litchfield, 35 N. H. 271; Macungie Township v. Merkhoffer, 21 P. F. Smith 476. This was one of the ordinary incidents and dangers of travel which the city was bound to guard against by every reasonable means in their power: Scott v. Hunter, 10 Wright 194; Lund v. Tyngsboro', 11 Cush. 563; Pittsburg v. Grier, 10 Harris 54. It was a question of fact for the jury whether the want of a safeguard was an efficient and concurrent cause of the injury, and there was ample evidence for them to pass upon it: Allen v. Willard, 7 P. F. Smith 378; Hays v. Gallagher, 22 Id. 136; McKee v. Bidwell, 24 Id. 218.
R. N. Willson (with whom was C. H. T. Collis, City Solicitor), for defendant in error.—The city claims that she is not bound to put or keep any or all of her highways in a condition which will insure or promote safety to horses which have broken away from, and are not under the control of their drivers, for the reason that the use of a highway by such an uncontrolled animal is not an ordinary, natural and legitimate use: Davis v. Dudley, 4 Allen 557; Titus v. Northbridge, 97 Mass. 258; Fogg v. Nahant, 98 Id. 578; Moulton v. Sanford, 51 Me. 127; Linton v. Chester, 1 Weekly Notes 192.
The jury found that the city authorities were derelict in duty in not placing proper guards or barriers along the river side of this very dangerous piece of road, and that this neglect was the proximate cause of the loss complained of by the plaintiff. The court on the other hand, regarded the fright and breaking away of the horse as the immediate cause of the disaster, and hence entered judgment for the defendant, non obstante veredicto. Herein we think the court erred. It is true that ordinarily provision is not to be made against contingencies so rare as runaway horses. Roads and bridges are constructed for the purpose of ordinary travel, and if they fulfil such purposes they are sufficient, and those who have them in care are not chargeable with the results of extraordinary accidents that may occur upon them.
These things must, however, be governed by common reason and observation. A road may be perfectly safe under some circumstances and very unsafe under others. A way of ten feet in width, in the open country, may be as secure as one of ten times that width, but along the brow of a precipice such a way would be very insecure. Perhaps, indeed, a steady, sure-footed team, handled by a cool and skilful driver, may pass over it as securely as over the former, but drivers of only ordinary nerve, with fractious teams are unsafe upon it, and it is just for this reason that such a road should be provided with guards which, under ordinary circumstances, would not be essential. As was said, per curiam, in the case of Lower Macungie Tsp. v. Merkhoffer, 21 P. F. Smith 276, "a highway must be kept in such repairs that even skittish animals may be employed without risk or danger on it." So we have held that where a horse frightened and backed off a bridge, the township was responsible for the loss resulting therefrom because of the neglect of the supervisors in not providing side railings, by which notwithstanding the fright of the horse, the accident might have been prevented. Newlin Tsp. v. Davis, 27 P. F. Smith 317. Had this accident happened upon an open and unrailed bridge, under circumstances similar to those exhibited by the evidence now under consideration, there could be but one opinion as to the liability of the city. In such case the proximate cause of the disaster would be so obvious that no one could avoid its observance. Given secure side guards, and the driver is under no apprehension of immediate danger, whether his horse attempts to run or back; in either case he retains his seat and the lines, and has a reasonable chance to save himself and his property — remove the guards,...
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