Stringert v. Ross Township

• Decision Date: 04 January 1897
• Docket Number: 50
• Parties: Margaret Stringert, Appellant, v. The Township of Ross
• Court: Pennsylvania Supreme Court

36 A. 345

179 Pa. 614

Margaret Stringert, Appellant, v. The Township of Ross

No. 50

Supreme Court of Pennsylvania

January 4, 1897

Argued November 10, 1896

Appeal No. 50, Oct. Term, 1896, by plaintiff, from order of C.P. No 1, Allegheny County, June Term, 1891, No. 550, entering nonsuit. Affirmed. STERRETT, C.J., McCOLLUM and MITCHELL, JJ dissent.

Trespass to recover damages for the death of plaintiff's husband. Before COLLIER, J.

The facts appear by the opinion of the Supreme Court.

The court entered a compulsory nonsuit which it refused to take off.

Error assigned was in not taking off nonsuit.

Judgment affirmed.

James Fitzsimmons, for appellant. -- The case was for the jury: Sutter v. Young Twp., 130 Pa. 72; Lower Macungie Twp. v. Merkhoffer, 71 Pa. 276; Humphreys v. Armstrong County, 56 Pa. 204; Dean v. New Milford Twp., 5 W. & S. 545; Plymouth Twp. v. Graver, 125 Pa. 24; City of Altoona v. Lotz, 114 Pa. 238; Borough of Easton v. Neff, 102 Pa. 474; Shaw v. Philadelphia, 159 Pa. 487; Chilton v. Carbondale, 160 Pa. 463; Erie v. Schwingle, 22 Pa. 384.

Geo. H. Quaill, for appellee. -- A person who knows a defect in a highway and voluntarily undertakes to test it, where it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect: Wharton on Negligence, sec. 440; Forks Township v. King, 84 Pa. 230; Erie City v. Magill, 101 Pa. 616; Pitts. S.R.R. Co. v. Taylor, 104 Pa. 306; Fleming v. City of Lock Haven, 15 W.N.C. 216; Crescent Township v. Anderson, 114 Pa. 643; Barnes v. Sowden, 119 Pa. 53; Robb v. Connellsville, 137 Pa. 42; Hill v. Tionesta Township, 146 Pa. 11; Burns v. City of Bradford, 27 W.N.C. 201; Lynch v. City of Erie, 151 Pa. 380; Haven v. Bridge Co., 151 Pa. 620; Harris v. Commercial Ice Co., 153 Pa. 278; Winner v. Oakland Township, 158 Pa. 405.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE GREEN:

In the afternoon of November 8, 1890, the dead body of the plaintiff's husband was found lying in one of the public roads of the defendant township, leading to the city of Allegheny. The body was discovered at about 4 o'clock P.M. The day was dry and pleasant. The deceased was riding in a one-horse wagon, which had been loaded with willow baskets when he left home in the morning, and which were intended to be, and no doubt were, disposed of in the city. When found in the afternoon there was nothing in the wagon but two sacks of feed and two kegs of beer. Upon examination of the dead body it was discovered that the neck was broken at a point which probably caused instant death, according to the testimony of the attending physician. No person saw the accident, and no witness was examined who gave any testimony whatever as to the facts of the occurrence. This action was brought by the widow to recover damages from the township for the loss of her husband. At the trial, upon the completion of the plaintiff's testimony, the court granted a compulsory nonsuit, upon the ground that there was not sufficient evidence to hold the township liable. The propriety of this action is before us on appeal.

Of course it was necessary for the plaintiff, in order to establish a cause of action, to show not only the death of her husband, but also that his death was occasioned by the negligence of the defendant: 93 Pa. 449; 97 Pa. 70; 102 Pa. 474. As there was no testimony to the facts which resulted in his death, there is a serious practical difficulty in the way of the plaintiff in establishing her cause of action. There was evidence given as to the condition of the road at the place of the accident, and it was of such a character that a jury might be justified in finding that it was in a condition of bad repair, which was due to the negligence of the defendant. But in order to recover it must be further shown that the negligence of the defendant in this regard was the producing cause of the death. If, taking all the facts together, a justifiable inference could be drawn that the negligent condition of the road was the cause of the death, there was enough to carry the case to the jury. But the difficulty in the case is that the plaintiff's contention in this regard requires a succession of inferences without any actual testimony to support them. The best that can be said in support of the plaintiff's theory is that the deceased may have been traveling at a good rate of speed, that the wagon was driven with some rapidity into the hole or ruts which were proved to be there, that it might have been so much jolted by the sudden fall of the wheels into the hole or ruts that the body of the deceased may have been forcibly thrown from the wagon, and that the body may have so fallen as that the head was foremost, and received the shock of the blow, and that in fact the head did strike some hard substance, as the wheel or the hub, or the ground, with such force as to cause the dislocation of the neck. Now if all these things had been proved by testimony there would have been sufficient evidence to carry the case to the jury, because a verdict could then be founded upon proof, and not upon mere inference. But there was no testimony upon any of these subjects, and the question then arises, whether the inference that the death was caused by the negligence of the defendant is the only inference that can be drawn from the facts that are in evidence. If it is not, and other inferences may be drawn from the same facts, then there is nothing for the jury but mere guesses or conjectures, and upon these no verdict can be founded.

Evidence was given which tended to show that at the place of the accident there was a depression in the surface of the road, evidently intended to carry surface water from one side of the road to the other. This space was about four feet wide and seven feet long. It was depressed about fifteen inches below the surface of the road. There was some confusion in the testimony as to there being any ruts. Some of the witnesses called the space above referred to a rut, but another said there were two ruts running lengthwise in the road, and parallel with its direction, and across the water table, and there was some evidence that these ruts were about fifteen inches in depth. Dr. Linley, one of the witnesses, said nothing about any water table or depressed surface of the road, but described only two longitudinal ruts, one on each side of the road, about twelve or fifteen inches in depth, and said the ground between them was solid. He traveled the road a great deal, by day and night, and said: "Q. And how did you go when you were going along there? A. I sometimes slipped into the rut, and at other times I would drive to the south side in the mud. Q. And by going to the south side you avoided the rut? A. Yes, sir."

Jacob Pool, one of the two persons who first discovered the body says nothing of any parallel ruts, but speaks only of the water table or depressed portion of the road, and says: "It extended very near clear across the road. It was easy seven feet wide and about four feet long. That is you know four feet the way the road was running, and across the road, seven feet. . . . The hind wheels of this wagon were in that hole." On cross-examination, speaking of this same hole, he was led by the questions put to him to call it a rut. Thus "Q. The front wheels had got up out of the rut? A. Yes, sir. Q. And the hind wheels were still down in the rut? A. Yes, sir. Q. Did this rut extend all the way across the road? A. Very near. Q. What was it that caused this rut? A. The travel of the wagons running down into the rut wore a hole there. . . . Q. How could you avoid this rut on the road at that place? A. You couldn't avoid it at all; you had to go through it; you had to go through one part of it anyhow."

John Smith, the other of the two persons who were together when the body was found, describes the "hole," as he calls it, just about as Pool did. He also spoke of it as a rut in answering questions on cross-examination, but he described a hole. He was asked, "Q. Then this rut as I understand it began on the upper side of the road, on the right hand side as you were going out, and extended over about seven feet? A. Yes, sir. . . . Q. And what was it that caused this hole in the road? A. I guess it was just a little rut happened there and the wheels kept working down. Q. It was originally a soft place and the wheels kept gradually working it down? A. A little soft I guess. Q. The rut or hole you say was dry at this time? A. Yes, sir. . . . Q. The front wheels were clear up out? A. Yes, sir. And the hind wheels were down in the rut when you saw it? A. Yes, sir." Andrew Smith spoke of it as a hole and a rut indiscriminately, but evidently meant a hole. Peter Snyder described it as a hole, saying, "it was kind of on a slope across the road," and, "it was not quite square across the road. The upper wheel would pull out of the wash just about the time the lower one would go in. Q. You have crossed it as you say? A. Yes, sir, I crossed it about twice a week always, sometimes three or four times, but twice a week always, when I done the marketing. Q. Was there anything there to prevent you from crossing; that is to deter you from crossing, -- the appearance of it? A. No, sir; I always got over it pretty good . . . there was a...