Piollet v. Simmers.

• Decision Date: 06 October 1884
• Citation: 106 Pa. 95
• Parties: Piollet et al. <I>versus</I> Simmers.
• Court: Pennsylvania Supreme Court

106 Pa. 95

Piollet et al. versus Simmers.

Supreme Court of Pennsylvania.

March 19, 1884.

October 6, 1884.

March 19, 1884.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas of Bradford county: Of January Term, 1883, No. 190.

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W. T. Davies and Williams (Angle and Ellsbree & Son with them), for the plaintiffs in error.—The right of an abutting property owner to occupy a portion of the public highway is equal and co-ordinate with the public use of the easement, and is not subordinate and subservient thereto: 2 Dillon on Mun. Corp., 679, 681, §§ 581, 585; Clark v. Fry, 8 Ohio St., 358; O'Linda v. Lothrop, 21 Pickering, 292; Underwood v. Carney, 1 Cushing, 285; Commonwealth v. Passmore, 1 S. & R., 219; Palmer v. Silverthorn, 8 Casey, 69; Mallory v. Griffey, 4 Norris, 277; Allegheny v. Zimmerman, 14 Norris, 293; Macomber v. Nichols, 34 Mich., 212; Baker v. Fehr, 1 Out., 70; Keith v. Easton, 2 Allen, 552; Kingsbury v. Dedham, 13 Allen, 186; Cook v. Charlestown, 13 Allen, 190. The defendants were only required to guard against frightening horses of ordinary gentleness, ordinarily well-broken, and road-worthy horses: P. W. & B. R. R. Co. v. Stinger, 28 P. F. S., 228; Mallory v. Griffey, 4 Norris, 277; Pittsburgh Southern R. R. Co. v. Taylor, 8 Out., 306; Foshay v. Glen Haven, 25 Wisc., 288; Morse v. Richmond, 41 Vermont, 435; Ayer v. Norwich, 39 Conn., 376; Card v. Ellsworth, 65 Maine, 547. All cases to the contrary apply to the duty of supervisors in keeping the road itself in repair.

Rodney A. Mercur and John F. Sanderson (Edward Overton, Jr., with him), for defendant in error.—As to the right of an abutting property owner to obstruct the highway: Erie v. Schwingle, 10 Harris, 388; Grier v. Sampson, 3 Casey, 183; Born v. Plank Road Co., 5 Out., 334; Dillon on Mun. Corp., 1058, § 1032; vol. ii., 722, § 730; Wood on Nuisances, §§ 262, 255. The placing obstructions in the highway has been held to create liability in: Young v. New Haven, 39 Conn., 435; Bartlett v. Hooksett, 48 New Hampshire, 18; Morse v. Richmond, 41 Vermont, 435; Winship v. Enfield, 42 New Hampshire, 199; Chamberlain v. Same, 43 New Hampshire, 358; Dimock v. Suffield, 30 Conn., 129; Little v. Madison, 42 Wisc., 643; Bennett v. Lovell, 12 R. I., 166; Foshay v. Glen Haven, 25 Wisc., 288; Ayer v. Norwich, 39 Conn., 376; Brookville v. Pumphrey, 59 Indiana, 78; Fritsch v. Allegheny, 10 Norris, 226. A highway must be so kept that even skittish animals may be employed without risk of danger on it: Lower Macungie Twp. v. Merkhoffer, 21 P. F. S., 280; Hey v. Philadelphia, 31 P. F. S., 50; Pittston v. Hart, 8 Norris, 391; Wharton on Negligence, § 100; Ring v. Cohoes, 7 Reporter, 726.

Mr. Justice GREEN delivered the opinion of the court, October 6, 1884.

The injury for which the present action was brought, was occasioned in a peculiar and unusual manner. The plaintiff and another were riding in a carriage along a public road, in the open country, at about eight o'clock in the evening of a day in the month of July, when suddenly the horse drawing the carriage reared, plunged a few steps forward, fell to the ground on the side of the road, and instantly died. In falling he upset the carriage, which fell upon the plaintiff and caused the injuries for which the suit is brought. The falling and death of the horse caused the overthrow of the carriage; but what was it that caused the falling and death of the horse? This is perhaps the true problem of the controversy, but the cause does not seem to have been tried with much reference to its solution. There was an object standing by the side of the road, and quite near to the beaten track, at the place where the horse fell, and it seems to have been assumed that the horse took fright at the sight of this object, and this caused him to rear and fall and die. But this is an unsatisfactory theory. We do not know whether horses ever die from mere fright. No evidence on the subject was received. Some testimony was offered by the defendants, to the effect that the horse could not have died of fright, and that his death was due to some other cause; but it was rejected by the learned court below, and that rejection constitutes the substance of several assignments of error. No postmortem examination of the horse was made, and the cause of justice was thus deprived of what might have proved to be a most important aid in the determination of the catastrophe. No experts in farriery were examined. No veterinary or other medical authorities were invoked, and the case is really barren of testimony from which a satisfactory theory of the animal's death may be derived. It is notorious that horses, like human beings, die suddenly, and of similar diseases. Indeed one of the medical witnesses testified to that effect in this case. If there were facts which indicated that this horse died from some sudden attack of disease, or opinions of intelligent witnesses to that effect, based upon facts observed by themselves, we think they should have been received in evidence. We think that both the witnesses, Dougherty and Ferguson, gave evidence which sufficiently qualified them to answer the questions proposed to them, but which were rejected. Dougherty had had much experience with horses for twenty years, had owned quite a number, owned five at the time he was examined; he had seen this horse shortly before his death, the same afternoon, and had observed and described his condition, saw him immediately after his death, saw the object which was supposed to have frightened the horse, and testified as to whether it was calculated to frighten horses. In view of all this we think the questions proposed to be put to him should have been allowed, the first one for the reasons above indicated, and the second for the reason hereafter stated. Ferguson was a blacksmith, had shod horses of many different kinds for over fifty years; had always handled horses "since he was big enough;" had seen horses frightened frequently; it was offered to prove by him that he had seen horses fall, and thrown to the ground many times, and then to inquire whether the mere fall of this horse could have killed him, having reference to the ground where he fell, the witness having seen it. We think he was sufficiently qualified to answer this question, and his opinion should have been received, and also on the subject whether a horse could have been frightened to death by the object at which this horse was supposed to have taken fright. Had the horse run away, and in that manner upset the carriage, there would have been more force in the objections to this testimony. But such was not the fact. He died instantly, and the cause which produced his death probably occasioned his fall, and it was his fall that upset the carriage. Now the actual physical fact or condition, which produced his death, cannot be known, and the moral condition, so to speak, is a mere matter of theory which requires illustration by the opinions of persons having experience in such matters. For these reasons we sustain the fourth, seventh, and eighth assignments of error.

Another question arose on the trial which is presented in several assignments. It relates to the character and qualities of the horse against whose fright precautions are required. It was contended by the defendant that the animal should be an ordinarily quiet and well-broken horse. This was denied by the plaintiff, who contended that an object should be such as would not frighten any kind of horses, whether quiet and well-broken, or skittish and shy. The court adopted the latter view, and refused to allow the defendants to inquire whether the object in this case was calculated to frighten an ordinarily quiet and well-broken horse, or an ordinarily well-broken and road-worthy horse. The same idea was embodied in the answers to points, and in the general charge, where the thought was expressed in the more comprehensive form that if the object was calculated to frighten horses, without any qualification as to their disposition, it would be negligence to expose it to view. In this we think there was error.

There is a certain right of property owners, which we will discuss presently, to leave objects on or along a highway, in front of their premises, temporarily, and for special purposes, and where that right exists, it is of equal grade, before the law, with the right of travellers to journey on the highway. Hence in such cases the obligations of each class to the other are equal, and not superior, the one to the other. Each is bound to ordinary care toward the other, in the exercise of their respective rights, but not to care which is extraordinary. In the more particular application of this doctrine to a case like the present, we think the correct rule is, that a property owner who has a lawful right to expose an object, on or along a public highway, within view of passing horses, for a temporary purpose, is bound only to take care that it shall not be calculated to frighten ordinarily gentle and well-trained horses. And this seems to be the tenor of the authorities in the cases in which there has been a judicial expression on the subject. Thus in the case of Mallory v. Griffey, 4 Norris, 275, which was an action to recover damages resulting from the fright of a horse, occasioned by a large stone along the highway, our brother STERRETT said: "It was claimed that the stone was an object calculated to frighten an ordinarily quiet and well-trained horse, and that the defendant was chargeable with negligence in leaving it on the highway. This presented a question of fact which was properly submitted to the jury with the instruction that the plaintiffs could not recover unless they found, `from the evidence that a stone or rock, such as was...