Mueller v. Township

• Decision Date: 03 January 1893
• Docket Number: 52
• Citation: 25 A. 604,152 Pa. 399
• Parties: Mueller v. Ross Township, Appellant
• Court: Pennsylvania Supreme Court

25 A. 604

Mueller v. Ross Township, Appellant

152 Pa. 399

No. 52

Supreme Court of Pennsylvania

January 3, 1893

Argued October 27, 1892

Appeal, No. 52, Oct. T., 1892, by defendant, from judgment of C.P. No. 3, Allegheny Co., Aug. T., 1891, No. 98, on verdict for plaintiff, John M. Mueller.

Trespass for injuries to horses and wagon.

The facts appear by the opinion of the Supreme Court.

At the trial, before McCLUNG, J., defendant's request for binding instructions was refused.

Verdict and judgment for plaintiff for $69.07. Defendant appealed.

Error assigned, inter alia, was refusal of defendant's request for instructions as above, quoting it.

Judgment reversed.

Geo. H Quaill, for appellant. -- If the passageway along the road at this point was openly and obviously dangerous, it was plainly the duty of plaintiff to get down from his wagon and lead his horses past the danger, rather than recklessly expose himself and them to danger which was imminent, as he claims. Having failed in this, his own conduct contributed to the injury, and he cannot recover: Wharton, Neg. § 440; Forks Township v. King, 84 Pa. 230; Pittsburgh & Southern R.R. v. Taylor, 104 Pa. 306; Crescent Township v. Anderson, 114 Pa. 643; Keeley v. Shanley, 140 Pa. 213; Hill v. Tionesta Township, 146 Pa. 11.

The traveler must use common and ordinary caution. The municipality is required only to exercise that care which common prudence would dictate: Erie v. Magill, 101 Pa. 617; Jackson Township v. Wagner, 127 Pa. 184.

W. T. Tredway, for appellee. -- If a road is so dangerous by reason of its proximity to a precipice, or any other cause, that common prudence requires extra precaution in order to secure safety to travelers, the municipal authorities are bound to use such precaution: Hey v. Phila., 81 Pa. 44; Scott Tp. v. Montgomery, 95 Pa. 444; Lower Macungie v. Merkhoffer, 71 Pa. 276; Newlin Tp. v. Davis, 77 Pa. 317; Plymouth Tp. v. Graver, 125 Pa. 24.

If damage from an imperfect highway be the effect of a precedent cause arising from a neglect of duty by a municipality, it is liable for it: Hey v. Phila., 81 Pa. 44; Plymouth Tp. v. Graver, 125 Pa. 37. The case was properly left to the jury: Plymouth Tp. v. Graver, 125 Pa. 37; Beach, Contributory Negligence, 568; Plymouth Tp. v. Graver, 125 Pa. 24; Sutter v. Young, 130 Pa. 72; Jackson Tp. v. Wagner, 127 Pa. 195; Lower Macungie Tp. v. Merkheffer, 71 Pa. 276; Hey v. Phila., 81 Pa. 44; Newlin Tp. v. Davis, 77 Pa. 317.

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

OPINION

MR. PAXSON, CHIEF JUSTICE:

Upon the trial below the learned judge refused the defendant's first point, praying for a binding instruction in its favor. The plaintiff alleges that an accident occurred to his team by reason of the unsafe condition of one of the public highways of Ross township; one horse falling over an embankment below the road, pulling the other horse over with him, and causing some slight damage to the horse and wagon. The public road where the injury occurred was on the side of a hill, and at this particular point there was a curve with a slope on the other side, of six to eight feet to a fall. On the lower side of the road there was an embankment or footpath to protect it, upon which pedestrians walked. This embankment was one or two feet higher than the traveled road and it served as a substantial protection to wagons or other vehicles in icy weather to prevent their sliding over the side of the road, or to guard against just such accidents as this. The plaintiff knew all about the condition of the road, having traveled over it frequently. He knew of the curve, and of the embankment. The accident in question occurred between eight and ten o'clock at night, and the plaintiff testified that it was so dark that he could not...