Scott Township v. Montgomery

• Court: Pennsylvania Supreme Court
• Writing for the Court: Per Curiam
• Citation: Scott Township v. Montgomery, 95 Pa. 444 (Pa. 1880)
• Decision Date: 25 October 1880
• Parties: Scott Township <I>versus</I> Montgomery.

Page 444

95 Pa. 444

Scott Township versus Montgomery.

Supreme Court of Pennsylvania.

October 15, 1880.

October 25, 1880.

October 15th 1880.

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

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 152.

Miller & McBride, Malcolm Hay and W. D. Porter, for plaintiff in error.—Whatever duties are incumbent upon townships in the matter of opening and repairing the public roads, are prescribed by the Act of June 13th 1836, Pamph. L. 555. There is no obligation thereunder to guard or barricade public roads. The statute does not require it as an element of original construction, and it is not required as repairs. In cases in which townships have been held liable, the facts show that the road bed itself was out of repair and not clear of impediments as the statute required. A very different measure of duty is imposed upon townships from that which is imposed upon cities and boroughs; the one being only a quasi corporation with very limited powers and duties, and the others being corporations of vastly larger though differing powers, and having jurisdiction and control over their streets, enabling them to construct and supervise them much more efficiently and completely, and containing population and possessing means which impose larger responsibilities: Dillon on Mun. Corp., sects. 761, 762, 763, 786; Graffins v. Commonwealth, 3 P. & W. 504; Act of April 3d 1851, sect. 2, Pamph. L. 321; entitled "An Act regulating boroughs." This measure of duty is also recognised in Pittston v. Hart, 8 Norris 389; Perry Township v. John, 29 P. F. Smith 412. But apart from the question of liability in actions of negligence for mental suffering as distinguished from bodily suffering, the court below in its answer to the seventh point instructed the jury that they should allow in estimating the damages, * * * not only for the mental pain and suffering which the plaintiff had already endured, but also for that which he was likely to experience during the remainder of his life. This was giving the jury no rule of damages whatever, but leaving the whole matter of damages, without evidence, or possibility of evidence, on this subject to guide them, to their imagination.

Weir & Gibson, for defendant in error.—The laws which authorize and require the construction of streets and bridges in cities and boroughs impose like duties upon the city and borough authorities. The plain and obvious meaning and intent of these provisions are, that townships shall open the roads and build the bridges described in the act, and shall maintain and keep them in such condition and repair as may be necessary for the convenience and safety of the travelling public. Cities and boroughs are required to keep their streets and bridges in like manner. It makes no difference from what cause the unsafety arose, whether from the want of repairs to the bed of the road or street, or whether from the want of protection in case of close proximity to dangerous precipices.

The great question is, were they unsafe for travel at the time and place of the accident from any cause whatever? If they were, and the city, borough or township in charge of them had the taxable ability to make them safe, it was their duty to do so. If the omission or failure to perform this duty caused injury to life, person or property, without fault on the part of the injured, this court and the courts of many of the other states of the...