Kunkle v. Lancaster County
| Decision Date | 25 June 1907 |
| Docket Number | 131 |
| Citation | 219 Pa. 52,67 A. 918 |
| Parties | Kunkle, Appellant, v. Lancaster County |
| Court | Pennsylvania Supreme Court |
Argued May 22, 1907
Appeal, No. 131, Jan. T., 1907, by plaintiff, from order of C.P. Lancaster Co., Oct. T., 1905, No. 43, refusing to take off nonsuit in case of Francis Kunkle v. Lancaster County. Affirmed.
Trespass to recover damages for death of plaintiff's wife. Before HASSLER, J.
The facts appear by the opinion of the Supreme Court.
Error assigned was in refusing to take off compulsory nonsuit.
The judgment is affirmed.
B. F Davis, for appellant. -- The plaintiff's wife was an entire stranger to the place, had never driven over the road before, nor never on the bridge before. She was riding in her father-in-law's team, driven by him, and was returning to her home in Lancaster from a visit to her father-in-law. We contend that it was gross negligence, on the part of the defendant in this case, and no contributory negligence on the part of the plaintiff's decedent: Francis v. Franklin Twp., 179 Pa. 195; Boone v. East Norwegian Twp., 192 Pa. 206; Yoders v. Amwell Twp., 172 Pa. 447; Newlin Twp. v. Davis, 77 Pa. 317; Burrell Twp. v. Uncapher, 117 Pa. 353; Plymouth Twp. v. Graver, 125 Pa. 24; Finnegan v. Foster Twp., 163 Pa. 135; Little v. Telegraph Co., 213 Pa. 229; Jones v. R.R. Co., 202 Pa. 81; Faust v Ry. Co., 191 Pa. 420; Humphreys v. Armstrong County, 56 Pa. 204; Sheridan v. Palmyra Twp., 180 Pa. 439; Ryan v. Ardis, 190 Pa. 66; Merriman v. Phillipsburg Borough, 158 Pa. 78; Boro. of Easton v. Neff, 102 Pa. 474; R.R. Co. v. White, 88 Pa. 327; Grambs v. Lynch, 4 Penny. 243; Forks Twp. v. King, 84 Pa. 230.
John A. Coyle, of Coyle & Keller, with him N. Franklin Hall, for appellee. -- One who knows, or by ordinary care may know of a defect in a highway, and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect: Crescent Township v. Anderson, 114 Pa. 643, 647; Winner v. Oakland Twp., 158 Pa. 405; Railway Co. v. Taylor, 104 Pa. 306; Bailey v. Brown Twp., 190 Pa. 530; Boyle v. Boro. of Mahanoy City, 187 Pa. 1; Decker v. East Washington Borough, 21 Pa.Super. 211.
Where one has the choice of two ways, one safe and the other dangerous, and chooses the latter, he is responsible for all injuries received thereby: Haven v. Bridge Co., 151 Pa. 620; Hill v. Tionesta Twp., 146 Pa. 11; Erie v. Magill, 101 Pa. 616; Forks Twp. v. King, 84 Pa. 230.
Though the negligence of her father-in-law cannot be imputed to the plaintiff's wife, "she must be held for her own negligence." The immunity is not absolute to the extent of excusing reasonable caution in the face of patent danger: Crescent Twp. v. Anderson, 114 Pa. 643; Winner v. Oakland Township, 158 Pa. 405; Dean v. R.R. Co., 129 Pa. 514; Dryden v. R.R. Co., 211 Pa. 620, 623.
The facts were not in dispute. The testimony produced by the plaintiff of itself clearly showed the decedent's negligence: D., L. & W.R.R. Co. v. Cadow, 120 Pa. 559; Baker v. Gas Co., 157 Pa. 593; Myers v. R.R. Co., 150 Pa. 386.
Before MITCHELL, C.J., FELL, BROWN, POTTER and ELKIN, JJ.
The appellant here complains of the refusal to take off a judgment of compulsory nonsuit. This action was brought to recover damages for the loss of plaintiff's wife, who was drowned on August 25, 1905, while attempting to cross Beaver Creek, upon a bridge maintained by the county of Lancaster. The structure was a low one, only about three feet above the water at the ordinary stage, and was about forty-one feet long and sixteen feet wide. It was without guard rails at the side, and its construction was such that it sagged under the passage of a horse and wagon. On the day of the accident, Beaver Creek was very high, so that it flowed over the bridge to a depth of from two to eight inches, according to the testimony of different witnesses. The water running over the bridge was muddy and the bridge could not be seen, though its location could be fixed by a small wave, on the upper side of the bridge. The roads and fields on either side of the bridge were covered with water, which, on the south side, extended 250 to 300 feet from the bridge. About ten o'clock in the morning of that day, Benjamin Kunkle, the father of the plaintiff, accompanied by the wife of the plaintiff, was driving to Lancaster from his home. When they reached a point about 350 feet from the bridge, where they could see across the water in which the bridge was supposed to be, they stopped and waited for two teams that were coming across the bridge and through the water between them and the bridge. When one of these teams reached them, Benjamin Kunkle, in the hearing of plaintiff's wife, asked the driver of it if the bridge was there, and was told it was when he crossed. Upon receiving this information, he, with the plaintiff's wife, started to drive through the water and over the bridge, and when about the middle of it, a log came down the stream and struck the bridge, causing the horse to shy and step off the bridge, precipitating plaintiff's wife and the father into the water, where they both were drowned.
The facts being undisputed, the trial judge felt that no other inference than that of contributory negligence could be drawn, and he directed a judgment of compulsory nonsuit. Our examination of the evidence has satisfied us that his conclusion was right. This case is closely ruled by the decision in Crescent Township v. Anderson, 114 Pa 643. There, as here, the plaintiff was driven by her father into a dangerous place, and it was held that she was not justified in braving a known...
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