Humphreys v. Armstrong County

• Decision Date: 26 October 1868
• Citation: 56 Pa. 204
• Parties: Humphreys <I>versus</I> The County of Armstrong.
• Court: Pennsylvania Supreme Court

56 Pa. 204

Humphreys versus The County of Armstrong.

Supreme Court of Pennsylvania.

November 6, 1867.

October 26, 1868.

November 6th 1867.

Before WOODWARD, C. J., THOMPSON, STRONG, READ and AGNEW, JJ.

Error to the Court of Common Pleas of Armstrong county: No. 96, to October and November Term 1867.

COPYRIGHT MATERIAL OMITTED

D. Phelps and D. Barclay, for plaintiff in error, cited Acts of April 13th 1843, Purd. 878, pl. 75, Pamph. L. 221; May 5th 1854, Pamph. L. 561; Erie v. Schwingle, 10 Harris 389; Pittsburg v. Grier, Id. 54; Laing v. Colder, 8 Barr 482; Penna. Qailroad v. Zebe, 9 Casey 329; Beatty v. Gilmore, 4 Harris 463; Denn v. Milford, 5 W. & S. 545: Bartlett v. Crosier, 15 Johns. 253; 2 Greenl. Ev. § 232; Penna. Railroad v. McTighe, 10 Wright 316; Jones v. Wood, 4 Harris 25; Sartwell v. Wilcox, 8 Id. 117.

E. S. Golden, for defendant in error, cited McCully v. Clark 4 Wright 399; O'Brien v. Ph., W. and B. Railroad, 3 Phila. R. 78; Beers v. Housatonic Railway, 2 Am. R. R. Cas. 123; 19 Conn. R. 566; 1 Hilliard on Torts 137, 140, 141, 146; Brannan v. May, 17 Geo. 136; Griffin v. Mayor, 5 Seld. 456; Gorman v. Bangor, 38 Me. 443; Lane v. Crombie, 12 Pick. 177; Adams v. Carlisle, 21 Id. 146; Chicago v. Mayer, 18 Ill. 349; Moore v. Abbott, 32 Me. 46, 574; 2 Hilliard on Torts 141; Hyde v. Jamaica, 1 Williams 443; Simpson v. Hand, 6 Wh. 311; Railroad v. Skinner, 7 Harris, 298; Railroad v. Aspell, 11 Id. 147; Reeves v. Del. Railroad, 6 Casey 454; Railroad v. Zebe, 9 Id. 318; Whitehead v. Philadelphia, 1 Phila. R. 99; Butterfield v. Forrester, 11 East 60; Marriott v. Stanley, 1 M. & G. 568; Flower v. Adam, 2 Taunt. 314; Furman v. Concord, 2 N. H. 292; President of Mt. Vernon v. Dasouchett, 2 Carter 586; Penna. Railroad v. Henderson, 7 Wright 449.

The opinion of the court was delivered, October 26th 1868, by READ, J.

By the Act of 13th June 1836, relating to roads, highways and bridges, county bridges over any river, creek or rivulet on the line of adjoining counties shall be built and be maintained and kept in repair by the commissioners of such counties at the joint and equal charge of both counties; and if either county shall necessarily incur more than its due proportion of such charge, it shall be lawful for such county to recover from the other county the excess so incurred, in an action to be founded on this act. By a supplementary Act of 13th April 1843 (Pamph. L. 221), it was made the duty of the county commissioners of the several counties of this Commonwealth to repair all bridges erected by the county, and to pay the expenses of such repairs out of the county treasury in the usual manner, except (amongst others) the county of Armstrong; but by an act, "relative to roads and bridges in Armstrong county," of the 5th May 1854, this exception was repealed, and the provisions of said Act of 1843 were extended to the county of Armstrong.

A bridge had been erected by private subscription over Red Bank Creek in 1850, and on the 11th April 1859 the legislature passed "an act declaring a bridge between the counties of Armstrong and Clarion as a county bridge."

It recites that "the bridge across Red Bank creek, where the public road crosses said creek at the place known as the Rockport Mill, has been built by individual enterprise, and that the expense of keeping said bridge is too great for the townships adjoining," and then enacts, "that the bridge which is now built across Red Bank creek, between the counties of Armstrong and Clarion, at the place known as the Rockport Mill, be and the same is declared a county bridge, and to be governed by the laws now in force in relation to bridges built on county lines."

The bridge had been built about ten years, and had been a county bridge one year and seven months when it fell. On the 10th November 1860, about three o'clock in the afternoon, whilst the plaintiff and two other men in a wagon, with a grist of ten bushels of buckwheat, were crossing the bridge at a slow walk, it broke down and the whole span went down, the Armstrong end of the bridge going down first. All floated down the creek together, and landed about one and a half miles down, caught on a rock, scattered the bridge, and the horses went out on the Armstrong side.

The defendant got his wound on the falling of the bridge. His frontal bone was fractured, and he was trepanned. He was very ill for several months, and the injury left him deaf of one ear, and when his physician attended him he thought he would never be able to attend to business.

This action is brought to recover damages for this injury. The natural inquiry was therefore as to the actual condition of the bridge previous to and at the time of the accident. The evidence is principally, if not entirely, confined on this point to the year 1860.

Two of the supervisors examined the bridge in June, and in the large braces found the wood rotten. They ran their knife-blades in the whole length. The timbers were rotten — the ends of all the timbers. Examined the end of the sill and end of the brace, and found them rotten. Both thought the bridge unsafe, and it was closed up twice in that month by one of them.

Two of the Armstrong and two of the Clarion county commissioners, some time afterwards, examined the bridge, the Armstrong commissioners having been notified that it needed repairs and was unsafe.

They did not make any particular examination of the bridge, and gave a contract to Mr. Putney to fix it; it was plain it needed a good many planks, say 1000 feet of plank, and tightening screws and braces. They did not examine the extent of the rottenness nor close up the bridge. Putney was limited to $30 or $40. In looking at the sills they saw they were rotten. The laying on the plank and tightening the screws would not strengthen the sills. One of the commissioners who examined the bridge said, "We came to the conclusion that by tightening the nuts and putting on some new plank it would do till the next spring; we had a number of bridges to build, and were scarce of funds."

The repairs directed by the commissioners were made, and after it was repaired every person travelled on it, and it was generally used by the public, and Amos McMillan, one of the...