Argued
October 19, 1905
Appeal, No. 155, Oct. T., 1905, by defendant, from judgment
of C.P. Butler Co., Sept. T., 1905, No. 65, on verdict for
plaintiff in case of Eleanor C. Little v. The Central
District and Printing Telegraph Company. Affirmed.
Trespass
to recover damages for personal injuries. Before GALBREATH
P.J.
The
circumstances of the accident are stated in the opinion of
the Supreme Court.
At the
trial the court, after reading to the jury section 33 of the
act of April 29, 1874, charged, inter alia, as follows:
[So,
gentlemen, you will see under the law the defendant company
had the right to place its poles along or upon the public
highway, but in so doing it must not so place them as to
incommode the public use of the highway. As you all know the
public highways are created in the first instance and
principally for the use of the travelers upon them and that
public use must not be rendered dangerous or inconvenient by
telegraph companies in placing poles upon it. Now, gentlemen,
the company had therefore the right to place its poles upon
the public highway; it did not have the right and would not
have the right to place the poles upon the traveled portion
of the road. You understand what is meant by that, the part
that customary travel occupies and takes on the public
highway. It would not have the right to plant its poles on
that portion of the highway and I would say it would not have
the right to place its poles in such near proximity to the
traveled track of the highway as to render the highway unsafe
or inconvenient. In placing its poles so as to not incommode
the use of the highway, therefore, we think it should not
place its poles in a position to render inconvenient and
unsafe public travel along the highway. If in placing them
they are located upon the traveled portion of the public
highway, the traveled track, that, gentlemen, it would go
without saying, would be placing them where they would
inconvenience, at least, the travel. If placed in such close
proximity to the traveled or beaten track as to make probable
or natural that a person driving along in the daytime or
nighttime would meet with an accident and receive an injury
such placing of it would be a placing so as to incommode the
public use of the highway.]
[Now,
gentlemen, the company had therefore the right to place its
poles upon the public highway, it did not have the right and
would not have the right to place the poles upon the traveled
portion of the road. You understand what is meant by that,
the part that customary travel occupies and takes on the
public highway. It would not have the right to plant its
poles on that portion of the highway and I would say it would
not have the right to place its poles in such near proximity
to the traveled track of the highway as to render the highway
unsafe and inconvenient. In placing its poles so as to not
incommode the use of the highway, therefore, we think it
should not place its poles in a position to render
inconvenient and unsafe public travel along the highway. If
in placing them they are located upon the traveled portion of
the public highway, the traveled track, that, gentlemen, it
would go without saying, would be placing them where they
would inconvenience, at least, the travel. If placed in such
close proximity to the traveled or beaten track so as to make
probable or natural that a person driving along in the
daytime or nighttime would meet with an accident and receive
an injury, such placing of it would be a placing so as to
incommode the public use of the highway.]
[The
question as to where this pole was placed with reference to
the traveled or beaten track of the highway is a matter
somewhat in dispute. On part of the plaintiff it is alleged
this was placed in 1896 in what was at that time a portion of
the traveled track of the highway. You have heard the
witnesses who testified to that effect, I believe Mr.
Shannon, possibly Mr. Cashdollar and others. They say they
have known the road for quite a number of years and at the
time when the pole was placed there it was placed on a
portion of the public highway then used for the driving of
vehicles over it. If that were true that would, we think, be
an encroachment on the highway not authorized or intended by
the act of assembly, or, if the company placed it in such
near proximity to that traveled or beaten track as to
naturally and probably lead to results such as complained of
in this case, then we think that, gentlemen, would be placing
it so as to incommode the public highway and such as not
warranted by the act of assembly.]
[You
remember also the testimony of the witnesses for the
defendant as to where the pole was located with reference to
the traveled track as now and formerly was. Some state there
is grass growing on the location now. You will take that fact
into consideration in connection with the other testimony,
and the time that elapsed since the pole was placed there,
and from all the testimony you will conclude whether or not
that pole was placed upon the traveled track at that time, in
which case we think it would be negligence on their part, or
if not placed on was in such close proximity as to render
probable such an injury as complained of in this case.]
[On the
part of the defendant it is argued and contended here that it
was negligent of Miss Little to be riding in the nighttime in
the manner in which she was. Now, gentlemen, we may say to
you that public roads are made for all sorts of proper travel
upon them and with all kinds of vehicles such as are usually
used by persons traveling upon the roads, and we may say to
you that all have a right to travel upon the public highways
in parties under conditions such as the parties were
traveling under in this case, and have a right to travel if
they wish to travel upon hay ladders with hay upon them and
also in the nighttime.]
[So
that in the location of the pole on the highway the defendant
may be charged with the knowledge that persons may travel
with all manner of vehicles reasonable and proper, and may
travel in the nighttime as well as in the daytime, and
further charged with the knowledge and fact that the nights
sometimes are dark. All those things enter into the question
of the determination of the defendant's negligence, and
also into the question of the determination of the
plaintiff's contributory negligence.]
[It has
been argued and the court has been asked to say that it was
negligence on the part of the plaintiff riding on hay ladders
with her feet extending out for some little distance over the
bow of the wagon. We feel that we could not say this as a
matter of law. That is a matter of fact to be passed upon by
the jury and it is for you to say from your knowledge of
affairs and your experience as men in the country and passing
over the highways as to whether or not this was a dangerous
or negligent position for the plaintiff to assume in riding
in that way at that time.]
[And I
may say to you just here that under the law as it stands in
this State at this time it does not seem that the negligence
of the driver of a private conveyance can be attributed to
those with him. It seems to be settled in this State that the
others cannot be held for the negligence of the driver. It
was a matter of some controversy for a long time, but now the
law seems to be settled in that way. So that even if the
driver in this case was negligent that negligence could not
be charged up to the plaintiff in this case as contributory
negligence on her part because she would not be held for the
negligence of the driver.]
Verdict
and judgment for plaintiff for $4,250. Defendant appealed.
Errors
assigned among others were (2-9) above instructions, quoting
them.
The
assignments of error are overruled and the judgment is
affirmed.
S. F.
Bowser, with him A. L. Bowser, for appellant. -- The burden
of proving negligence is on the party alleging it. The law
will not presume it for him. There is always a presumption
against it: McCully v. Clarke & Thaw, 40 Pa. 399;
P. & R. Railroad Co. v. Hummell, 44 Pa. 375;
Whitaker v. Del. and Hudson Canal Co., 87 Pa. 34;
Federal St. and Pleasant Valley Ry. Co. v. Gibson,
96 Pa. 83; Baker v. Fehr et al., 97 Pa. 70;
Leidy v. Quaker City Cold Storage Co., 180 Pa. 323;
Davidson v. Humes, 188 Pa. 335; Philadelphia &
Reading R.R. Co. v. Boyer, 97 Pa. 91.
Contributory
negligence in any degree on part of the plaintiff will
prevent recovery in an action for damages: Monongahela
City v. Fischer, 111 Pa. 9; Long v. Milford
Twp., 137 Pa. 122; Dougherty v. Philadelphia,
210 Pa. 591; Township of Crescent v. Anderson, 114
Pa. 643; Dean v. Penna. Railroad Co., 129 Pa. 514;
O'Toole v. Pittsburg & Lake Erie R.R. Co., 158 Pa. 99.
Lev.
McQuistion, with him John H. Wilson, for appellee. -- cited:
McCully v. Clark, 40 Pa. 399; Reeves v. R.R.
Co., 30 Pa. 454; R.R. Co. v. Zebe, 33 Pa. 318;
Carroll v. R.R. Co., 12 W.N.C. 348; R.R. Co. v.
Ogier, 35 Pa. 60; Robinson v. R.R. Co., 66 N.Y.
11; Finnegan v. Foster Twp., 163 Pa. 135;
Borough of Carlisle v. Brisbane, 113 Pa. 544;
Dyer v. Erie Ry. Co., 71 N.Y. 228; Masterson v.
N.Y.C. & H.R.R. Co., 84 N.Y. 247.
Before
MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and
STEWART, JJ.
