Kelley v. Township of Mayberry

• Decision Date: 01 May 1893
• Docket Number: 320
• Parties: Kelley v. Mayberry Township, Appellant
• Court: Pennsylvania Supreme Court

26 A. 595

154 Pa. 440

Kelley v. Mayberry Township, Appellant

No. 320

Supreme Court of Pennsylvania

May 1, 1893

Argued March 2, 1893

Appeal, No. 320, Jan. T., 1893, by defendant, from judgment of C.P. Montour Co., May T., 1889, No. 71, on verdict for plaintiffs, James Kelley and Annie, his wife, to the use of said wife.

Trespass for personal injuries caused by defect in highway.

The facts appear by the charge of the court.

The evidence was to the effect that plaintiff was thrown down an embankment some twenty feet from an unguarded highway where she lodged. In attempting to rise to escape the danger of the horses falling on her she fell further into a mill dam. A release of claim for damages by the husband was filed.

At the trial, when plaintiff, Annie Kelley, was on the stand, she was asked: Q. How is it now whether or not as to help? A. I am required to have help. Q. Before the accident did you have to employ help? A. I done my family work before the accident. Q. With help? A. Without. Mr. Hinckley: I object to that, in reference to her employing help. That cannot be an element of damage in this case. By the Court: The fact that she is unable to do her own work covers it. Mr. Scarlet: Q. What is your ability as to doing your own work about the house since the accident. Can you do it or not? A. I can do it. I can work one day in a week, but the next day I am not able to work around; I can walk around with the help of a crutch or cane; but I am in constant pain while I am doing it. Of course I have done it. Q. Did you expend any moneys of your own about your cure? Mr. Hinckley: That I object to, it cannot be any element in this case. (Cites a case.) By the Court: No doubt that was the law then; but is there anything decisive on the point since the act of 1887? (Mr. Scarlet cites the act of 1879.) Evidence admitted. Exception. [1]

The court charged in part as follows:

"This is an action brought by Annie Kelley, the wife of James Kelley, in her own right and for her own use, to recover against the township of Mayberry for injuries to her person received, as she alleges, through the carelessness of the supervisors of that township, for which the township would be liable if that carelessness is made out under the law as we shall lay it down to you.

"[Previously to the year 1879, she would not be entitled to recover for the loss of her services, because before that time the law was that her services belonged to her husband; but, under that act of assembly of 1879 and at the present time, she will be allowed to recover, if she makes out her case under the law, for services as well as for her injuries, actual loss and expenses.]

"There are some important facts in this case not disputed: The fact that this accident happened on a very dark, rainy night is not disputed; the place where it happened is not materially in dispute; the fact that plaintiff was traveling with others in a double sled -- a two horse team -- is not disputed; the injury received by the plaintiff is not disputed; [and the amount of her actual expense, incurred and paid out, is not disputed.] It is proved by the plaintiff, and not denied by the defendant, that the plaintiff, as one of a number of ladies, employed David Giffin, the owner and the driver of the team on the day of the accident, to convey the ladies for hire from Catawissa to Shamokin and return.

"[It is alleged by the plaintiff that in the course of that trip this accident occurred, through the carelessness and negligence of the municipal officers of the township of Mayberry. (1) That the township allowed its road, at the point where the accident happened, to be out of repair. (2) That the road was improperly constructed and was suffered to remain in a condition that rendered it unsafe for the traveling public.] (3) That the injury occurred to her without any fault or negligence on her part. . . .

"If you arrive at the conclusion that the plaintiff is entitled under the evidence to a verdict; then she is entitled to recover for the direct expenses incurred by reason of the accident, the inconvenience she was subjected to, the pain she has suffered and is likely hereafter to suffer in consequence of the injury received, the pecuniary loss sustained and likely to be sustained during her life, and her actual permanent loss of earning power." [3]

Plaintiff's point was among others as follows:

"3. That, if in view of all the evidence the jury find for the plaintiff, the jury must allow, in estimating the damages the expenses arising in consequence of the injuries to the plaintiff, and for the privation and inconvenience she is subjected to, and for the pain and suffering she has already endured bodily and mentally, and which she is likely to experience during the remainder of her life from her disabled condition." Affirmed. [4]

Defendant's points were inter alia as follows:

"2. In order to recover in this case the plaintiff must show that by the negligence of the defendant the plaintiff was precipitated from the road in question down a precipitous declivity into the milldam, by reason of which she received the injuries complained of. Answer: The plaintiff is not bound to show that she was thrown into the milldam, but to show that she was thrown down the declivity or down the embankment, from which she sustained injury; that she is bound to show, and we affirm this point." [6]

"4. If the jury believe from the evidence that the conduct of the plaintiff's driver was such from the time of leaving Shamokin until he reached the place of the accident as to give notice to all in the sled that he was incompetent either through excessive use of liquor or otherwise, and that the accident happened through the contributory negligence of said driver, the plaintiff cannot recover in this action, although defendant might be found guilty of negligence. Answer: That point we affirm, and in reference to intoxication we charge you as follows: The defendant also claims that on the night of the accident the driver, Giffin, was intoxicated to such an extent as to affect his skill and judgment as a driver. The law on this subject, as we understand it, is this: That although you may believe from the evidence that he, on the night of and previously to the injury complained of, had been drinking intoxicating drinks; yet, if you further believe from the evidence that the same had not so affected his mind and power of locomotion as to prevent him from exercising ordinary skill and care in driving his team and in passing over the road in question, and that he exercised such care and skill that the injury would not have been received, if the defendant township had put such railing or other protection as was necessary at the place of the accident for the reasonable safety of teams and vehicles of the kind used on the occasion for passing over that road; then you may still find the issue in favor of the plaintiff notwithstanding his drinking, if you find that his case is proved by the evidence in all other respects." [7]

"5. If the jury believe from all of the evidence that, for a period of thirty years or more immediately prior to the accident, the logway adjacent to the public highway in question at the place of the accident and north and south of it had been used by the public in connection with said highway as a way to drive to the sawmill, and that the erection of a barrier along the west side of the said highway would interfere with and prevent the continued use of said logway; the defendant township cannot be found to be negligent in not erecting said barrier. Answer: That point is refused and we instruct you as follows: The defendant claims that the owner of the mill property had a private right in the logway and that the right of the public in the logway was under all the evidence coequal and coextensive with the public right in the highway, and that therefore the supervisors had no power to erect a guard rail or other barrier at the place of the accident, because such structure would interfere with the public use of the logway. We feel bound to instruct you that whatever rights the mill owner or the public, or either of them, may had, or may have, in the joint or several use of the logway, under the evidence in this case, are subordinate to and yield to the superior right of the public to the ordinary use of that road, to a safe and secure passage to and fro and over and upon this highway at the place of the accident, and that if the road at that point required a barrier or a guard rail of some sort in order to make the passage ordinarily safe and secure, then the supervisors of the township had a clear right to put one there, and the persons who used the highway would be obliged to submit." [9]

6. Request for binding instructions. Refused. [10]

Verdict and judgment for plaintiff for $2,250. Defendant appealed.

Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2-10) instructions, quoting them.

Judgment affirmed.

H. M. Hinckley, E. S. Gearhart with him, for appellant. Evidence of the value of the wife's services must be given; no presumption arises that the wife is capable of and does earn anything: Henry v. Klopfer, 147 Pa. 184; Raybold v. Raybold, 20 Pa. 311; R.R. Co. v. Jones, 128 Pa. 308; Endlich & Richards, Married Women, § 278.

The act of 1879 says evidence may be given to show the expense arising in consequence of such injuries, and recovery may be had therefor. It is unfair to defendant, when no evidence has been given to fix the amount of expense either incurred or paid out, and when plaintiff says she is unable to fix it or even approximate the amount, for the court to say we do not dispute the amount.

The title of the act of 1879 is insufficient: Rogers v....