McCracken v. Borough

• Decision Date: 26 September 1932
• Docket Number: 207
• Citation: 309 Pa. 98,163 A. 217
• Parties: McCracken v. Curwensville Borough, Appellant
• Court: Pennsylvania Supreme Court

163 A. 217

309 Pa. 98

McCracken v. Curwensville Borough, Appellant

No. 207

Supreme Court of Pennsylvania

September 26, 1932

Argued April 12, 1932

Appeal, No. 207, Jan. T., 1932, by defendant, from judgment of C.P. Clearfield Co., Feb. T., 1929, No. 239, on verdict for plaintiff, in case of Lula McCracken v. Curwensville Borough. Affirmed.

Trespass for death of plaintiff's husband. Before McKENRICK, P.J. specially presiding.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $12,683.50. Defendant appealed.

Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.

The judgment is affirmed.

J. C Arnold, of Arnold & Smith, for appellant. -- There was no duty on the borough to remove snow and ice from Susquehanna Avenue.

The duty was on the department of highways to remove the obstruction: Brendlinger v. Twp., 148 Pa. 93.

There was no sufficient proof of negligence as to the ice on the street.

There was no sufficient evidence to sustain a finding of negligence of the borough as to the maintenance of the guard rails: Yocum v. Bloomsburg, 289 Pa. 512; Wasser v. County, 249 Pa. 25; Freedom Oil Works Co. v. County, 298 Pa. 174; Sumey v. County, 298 Pa. 93.

Decedent was guilty of contributory negligence as a matter of law: Knox v. Simmerman, 301 Pa. 1; Winner v. Twp., 158 Pa. 405; Kunkle v. County, 219 Pa. 52; Smith v. New Castle, 178 Pa. 298; Haskins v. R.R., 293 Pa. 537.

A. M. Liveright, of Liveright & Smith, with him Kramer & Kramer, for appellee. -- The facts of the instant case bring it within the ruling of the court in Bailey v. Oil City, 305 Pa. 325.

The whole question of contributory negligence is disposed of in Steck v. Allegheny, 213 Pa. 573; Brown v. White, 206 Pa. 106.

Negligence may be the proximate cause of an injury of which it is not the sole or immediate cause: Boggs v. Tea Co., 266 Pa. 428; Community Fire Co. v. Pa. P. & L. Co., 92 Pa.Super. 304, 307; Wassel v. Ludwig, 92 Pa.Super. 341, 343; Taylor v. Di Sandro, 102 Pa.Super. 258, 264.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE MAXEY:

The plaintiff, Lulu McCracken, brought an action in trespass against the defendant for causing the death of her husband through negligence. The fatal accident occurred in the Borough of Curwensville. In this borough Susquehanna Avenue crosses Anderson Creek by means of an iron bridge. The cartway of the bridge is of less width than the avenue leading into it, and the avenue narrows by several feet as it approaches the bridge entry. At the point of entry there is a sharp curve to the right, and a little further back there is a twenty degree curve to the left. By reason of the latter curve, the drivers of vehicles approaching the bridge have a somewhat limited view ahead. South and west of the avenue near the bridge entry and for about 100 feet prior thereto is a nearly perpendicular cliff 20 feet in height. The base of this cliff is 18 inches from the curb of the highway. Water customarily drips from this cliff at all seasons of the year, and at times of wet weather and melting snow it flows in a steady stream from this cliff to the highway. Occasionally bits of shale, clay and loose mud fall from the cliff upon or in close proximity to the highway. On the day of the fatality, there was an accumulation of shale, clay and mud extending out to the highway, and the curb was covered to a depth of two to six inches with mud for a distance of 75 to 100 feet. This accumulation was covered with ice three or four inches in thickness and this ice had been there for about 20 to 30 days. The mud caused the water to flow out upon the highway. At 4:30 p.m., December 26, 1928, plaintiff's husband was driving a sedan along Susquehanna Avenue, past the cliff toward the bridge. The ice made the highway slippery and dangerous. While McCracken's car was moving on the highway at this point, it skidded upon the hillocks and ridges of ice, became unmanageable, crashed against the guard rail of the bridge, and fell into the creek below, fatally injuring McCracken.

Plaintiff complains of the condition of the highway and the condition of the wooden guard rail. The latter had not been repaired for many years and it had become cracked and rotten. It consisted of two planks with one bolt in each end. There was no brace in the middle. It was in such condition that slight pressure was sufficient to loosen the planks and to permit any impacting object to break through it and fall off the bridge into the creek below. The jury found a verdict for the plaintiff in the sum of $12,683.50. There were motions for a new trial and for judgment non obstante veredicto. They were overruled. Judgment was entered upon the verdict and this appeal followed.

The first question that arises is whether or not the borough was responsible for the condition of this highway. The maintenance of the highway where this accident occurred was taken over by the department of highways under the Act of May 12, 1925, P.L. 593, section 10, at a time considerably prior to the accident. This section provides that where any highway within a borough shall form a part or section of any state highway and this section is not already improved according to the standards of the state highway department, the secretary of highways may improve or reconstruct such unimproved section at the expense of the Commonwealth; and ten per cent of the cost of said maintenance shall be paid by the borough in which the work is done.

It is obvious that the assumption by state officials of the duty of improving or reconstructing the highway, according to the standards of the state highway department, in no way relieves boroughs of the fundamental duty to keep its highways safe and free from obstructions. We agree with the court below that "a street within a borough is none the less a borough street because the state highway department may have constructed it at the expense of the State."

The Act of May 31, 1911, P.L. 468, the Sproul Act, which gave rise to our present system of state highways, provides in the first clause of section 10 as follows: "Anything herein contained, or any apportionment of the State into highway districts, shall not be construed as including or in any manner interfering with the roads, streets, and highways in any of the cities, boroughs or incorporated towns of the Commonwealth." This is repeated in later road acts, including the Act of May 12, 1925, P.L. 593.

Section 20 of the Sproul Act, 1911, P.L. 521, which provides that "for the purpose of uniform, efficient, and economic maintenance and repair of the state highways, the state highway commissioner [now secretary of highways] . . . shall keep the state highway free from holes, ruts, sticks, loose stones, or other impediments of any kind, which tend to interfere with free and easy travel, or which if permitted to exist might tend to the deterioration, injury or destruction of the highway," refers to state highways outside of the cities, boroughs and incorporated towns. The duty of keeping the streets within Curwensville Borough reasonably free from long standing accumulations of dangerous ice rested at the time of the fatal accident in question upon the borough and not upon the State.

The second question is whether or not the borough was negligent in permitting this accumulation of ice on this frequently traveled highway. "The liability of a municipality for injuries to travelers caused by accumulations of ice and snow on its streets and sidewalks depends upon whether or not it has been negligent. It is merely bound to exercise reasonable care and diligence to keep its streets and walks reasonably safe for travelers who are using due care, and its liability should be made to depend upon what is reasonable under all circumstances, paying attention to climatic conditions": 13 R.C.L. 408, section 335; Boro. of Mauch Chunk v. Kline, 100 Pa. 119; Holbert v. Phila., 221 Pa. 266, 70 A. 746.

In Decker v. Scranton, 151 Pa. 241, 25 A. 36, this court held that a municipality is liable in damages for an injury caused to a person by slipping on ice in a street, where the ice has accumulated by reason of the neglect to construct and maintain suitable drains to carry off water. This court said: "It was certainly its [the city's] duty to construct and maintain suitable ditches and sluices to carry off the water which ordinarily flowed from springs and other sources outside and in the vicinity of the highway. It could not in violation of this duty allow such water to run along the center of or over the road, until there was an accumulation of ice from it which rendered unsafe and obstructed travel thereon, without incurring liability to a party who in consequence thereof sustained an injury." The court said further: "That the road was in a dangerous condition at the time and place of the accident does not admit of serious question. . . . It was a condition which was attributable to the defective construction of the road, in conjunction with the ice which was negligently allowed by the city to form and remain there. The case was for the jury." See also Manross v. Oil City, 178 Pa. 276, 35 A. 959. Holbert v. Phila., 221 Pa. 266, 271, 70 A. 746, held likewise as to ice on a street or sidewalk.

In McLaughlin v. City of Corry, 77 Pa. 109, this court said: "If the city authorities were negligent in allowing a dangerous obstruction to exist in the public highway, which they could have removed, and the plaintiff was injured thereby, without any fault of his own, the city was undoubtedly liable for the damages which he suffered. It is argued, however, that as the obstruction complained of was the...