Kieffer v. Borough of Hummelstown

• Decision Date: 03 October 1892
• Docket Number: 4
• Parties: Kieffer v. Hummelstown Borough, Appellant
• Court: Pennsylvania Supreme Court

24 A. 1060

Kieffer v. Hummelstown Borough, Appellant

151 Pa. 304

No. 4

Supreme Court of Pennsylvania

October 3, 1892

Argued May 30, 1892

Appeal, No. 4, May T., 1892, by defendant, from judgment of C.P. Dauphin Co., June T., 1890, No. 416, on verdict for plaintiff, Joseph Kieffer.

Trespass for personal injuries.

The facts appear by the opinion of the Supreme Court.

The court charged in part as follows:

"The circumstances are what you have heard testified to by the witnesses. As you have heard, the plaintiff was driving along the road on the 1st day of January, 1890. Now then, taking into consideration the fact of his being there with his team at that time, considering what kind of a team it was from all that you know about it from the evidence, and the fact that the shooting was going on as detailed, and what the plaintiff did as to his driving, did he act as a person of ordinary prudence and care ought to have acted under those circumstances? If he did, it was not negligence. [It was argued by the counsel for the defendant that if he knew the shooting was going on and apprehended danger he should have stopped. That is a question for you to consider. Should he have stopped? Should he have gone on? What would he have done if he had stopped? All that you have to consider.] It is a question for you and upon that you are to determine whether he acted carelessly, whether he failed to act as a man of ordinary prudence would have acted. If he did not, he was not negligent, and if he did he was negligent, and if he was negligent his negligence contributed to the accident, and he cannot recover no matter whether the defendant was negligent or not.

"In determining whether he acted as a man of ordinary prudence you have to consider the circumstances as they were at the time. You are not to determine that because the accident happened he necessarily was negligent. You are to consider what a prudent man would have done and ought to have done under these circumstances, and knowing just what he did know then. [Was it a prudent thing for him to do to drive on? Would it have been a prudent thing to ask those people to stop shooting, and would they have stopped if he had asked them?]" [2]

Defendant's points, refused, were as follows:

"1. From the evidence in the case the plaintiff was guilty of contributory negligence in driving on after he saw the shooting, and was fearful his horses might run away, and the verdict must be for the defendant." [3]

"2. All the evidence in the case shows that the injury to plaintiff resulted from the want of due care upon his part and the verdict must be for the defendant." [4]

"3. Under all the evidence the verdict must be for the defendant." [5]

Verdict and judgment for plaintiff for $800. Defendant appealed.

Errors assigned were (1, 5) instructions, quoting points and charge as above.

Judgment reversed.

J. C. McAlarney, with him H. B. Houck, borough solicitor, and F. J. Shaffner, for appellant. -- Defendant was guilty of contributory negligence. He knew of the stone pile, he knew of the shooting, and voluntarily undertook to test his ability in managing his team, and was hurt in the experiment. He was bound to avoid a known danger: Pittsburgh South. Ry. v. Taylor, 104 Pa. 306; Payne v. Reese, 100 Pa. 301.

This being a country road, the borough was not bound to keep the whole width of the road from fence to fence free from obstructions: Dillon, Mun. Corp., § 1008; Monongahela City v. Fisher, 111 Pa. 13. Supervisors are not bound to furnish roads upon which it will be safe for horses to run away: Plymouth Twp. v. Graver, 125 Pa. 24; Horstick v. Dunkle, 1 Adv. R. 73. In the absence of evidence that the stones were a dangerous obstruction, the charge was clearly wrong: Worrilow v. Upper Chichester, 1 Adv. R. 622; Walters v. Wing, 59 Pa. 211; Forker v. Sandy Lake Borough, 130 Pa. 123.

A person who has knowledge of an obstruction in a highway must exercise caution: Erie v. Magill, 101 Pa. 616; Forks Twp. v. King, 84 Pa. 230; Crescent Twp. v. Anderson, 114 Pa. 643; Flemming v. Lock Haven, 15 W.N. 216; Erskine v. McNichol, 13 W.N. 224; Wilson v. Charles City, 8 Allen 137; Chartiers Twp. v. Philips, 122 Pa. 601.

Levi B. Alricks, J. C. Nissley with him, for appellees. -- It was proper to submit the question of negligence to the jury: Delaware etc. R.R. v. Jones, 128 Pa. 314; Pa. Canal Co. v. Bentley, 66 Pa. 30. The measure of duty in the case was of a shifting nature and it would have been error to have withdrawn the case from the jury. Concurrent negligence is not to be presumed, it must be proved: Beatty v. Gilmore, 16 Pa. 463; Erie v. Schwingle, 22 Pa. 384; Bush v. Johnson, 23 Pa. 209.

The charge of the court did not conflict with Chartiers v. Philips, 122 Pa. 601. In Horstick v. Dunkle, 29 W.N. 385, there was no defect in the road bed, the pond being fifteen feet from the edge of the road. But here there was an actual obstruction on the road itself as in Plymouth Twp. v. Garver, 125 Pa. 24; Jackson Twp. v. Wagner, 127 Pa. 184, and Wagner v. Jackson Twp., 133 Pa. 61.

The evidence disclosed that the road at the point where the accident occurred was in a bad condition except for a space wide enough for a wagon to pass next to the stone pile. The mud-holes, ruts and the stone pile were the elements of danger which called for the submission of the case to the jury: Wood v. Bridgeport Boro., 143 Pa. 171; Burrell Twp. v. Uncapher, 117 Pa. 353.

Before PAXSON, C.J., GREEN, McCOLLUM, MITCHELL and HEYDRICK, JJ.

OPINION

MR. JUSTICE GREEN:

At the point where the accident in this case occurred, the road was upwards of thirty-three feet in width. On the one side of the road, and next the fence, there was a long narrow pile of stones about one hundred and fifty feet in length, about five or six feet in width and about eighteen inches in height towards the road and sloping backwards to about two feet in height at the fence. The entire remaining width of the road was available for, and used as, the traveled way. It was testified that owing to the driving of heavy teams over it, loaded with stone, and for a considerable time, it was muddy and cut up and the best part of the road was that which was next the stone pile. The road was much driven over every day and was of ample width from the stone pile to the opposite side for all purposes of public travel. The plaintiff was perfectly familiar with the road and was constantly traveling over it. On the day of the accident he had taken a load of corn to the mill and was returning over the road. As he came to the place of the accident, he noticed some boys shooting at pigeons. He said: "The mules didn't mind it as well as the horses, but I attended well to my business and I thought I had got along pretty well. I had passed some men along the road on both sides, with guns, and as I had passed those there was a shot fired and scared my horses. I suppose I could have got them under control when the second shot was fired. They became unmanageable and I could not do anything, and they ran towards the stone pile that was there and the saddle horse fell. I often wondered after that I could not keep my foot out from under but I could not. They were two strong horses that I thought I could well manage, but the saddle horse fell. I was fast up to my knee lying on the stone pile."

On cross-examination he was asked: "Q. How did it happen that the horse fell? A. When the horses frightened the off side horse ran over the tongue and in tussling and tangling around there the horse fell. I never thought of the horse falling. The horse I suppose weighed fourteen hundred. Q. How far were you away from the stone pile when the off horse jumped over the tongue? A. We were against the stone pile. . . . Q. The off horse jumped over the tongue to the saddle horse? A. Yes sir. Q. Where was this? A. This was close to the stones. Q. You were not close to the stones when he got over? A. I was just about at the stones. Q. Was there considerable struggling going on at that time? A. Yes sir. Q. Between the off horse and the saddle horse? A. Yes sir. Q. In that struggle they got on the stones and you got under the horse? A. The horse fell in the struggle."

The plaintiff also testified: "Q. You say that that shooting frightened your horses? A. Yes sir, I have been traveling along there as I have said, and never had any trouble. The most of the time I was on the wagon when I had an empty wagon and left my horses walk along. . . . Q. The one horse that you were riding fell? A. Yes sir. Q. He was on the near side? A. Yes sir. Q. The saddle horse? A. Yes sir. Q. He was the farthest from the stones? A. No sir, the nearest. Q. Then the horse next to the stone pile fell? A. Yes sir. Q. What made him fall? A. The struggle, I suppose, of the off side horse. He was on the stones and naturally they were struggling there on the stones and finally the horse fell which was a great mystery to me."

He further said he had commenced hauling stones over that road in March, 1889, and continued to do so right along until the day of the accident, January 1, 1890, and that in the summer of 1889 he noticed a man digging a foundation between the stone pile and the fence. He said: "I asked him what they were going to do, and he said they were going to put up a wall."

The plaintiff's witness C. H. Hoffer, who was a surveyor and made a draft of the location, testified that when he made the draft there was no stone pile there, but in the place of it there was a stone wall. It would seem from this that the stones were gathered at this place for the purpose of building a stone wall there, and that it was actually built between January, 1890, and the time of the trial in May, 1891.

The plaintiff was asked: ...