Sutter v. Young Township

• Decision Date: 04 November 1889
• Docket Number: 52
• Parties: GEORGE W. SUTTER v. YOUNG TOWNSHIP
• Court: Pennsylvania Supreme Court

18 A. 610

130 Pa. 72

GEORGE W. SUTTER v. YOUNG TOWNSHIP

No. 52

Supreme Court of Pennsylvania

November 4, 1889

Argued October 8, 1889

APPEAL BY THE DEFENDANT FROM THE COURT OF COMMON PLEAS OF JEFFERSON COUNTY.

No. 52 October Term 1889, Sup. Ct.; court below, No. 161 May Term 1887, C.P.

On April 11, 1887, George W. Sutter brought case against Young township to recover damages for an injury received by him while driving over one of the public roads in said township. Issue.

At the trial on December 19, 1886, before WILSON, P.J., the plaintiff introduced evidence to show that on December 18 1886, while driving over a public road, with two horses and a sled loaded with boards, the sled was overturned and the plaintiff thrown over a bank, with the load of boards upon him, whereby he was seriously injured. The condition of the road at the point where the accident occurred is fully described in the opinion of the Supreme Court.

The defendant requested the court to charge:

8. That under all the evidence in this case the verdict of the jury should be for the defendant.

Answer This point is refused. It assumes there are no facts that ought to be left to the jury, and that it is a question of law for the court to say to the jury that there can be no recovery. If the court were to do that, it would be a reversible error, and the facts are left to the jury.

The jury returned a verdict in favor of the plaintiff for $1,200. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this writ assigning as the sole ground of error the answer to defendant's said point.

Judgment affirmed.

Mr. H. Clay Campbell (with him Mr. W. M. Fairman, Mr. I. G. Gordon and Mr. C. Z. Gordon), for the appellant.

Counsel cited: Dillon on Mun. Corp., 1019-20; Shear. & Redf. on Neg., §§ 147, 407; Otto Tp. v. Wolf, 106 Pa. 608; Rapho Tp. v. Moore, 68 Pa. 404; Beatty v. Gilmore, 16 Pa. 463; Pittsb. etc. Ry. Co. v. Taylor, 104 Pa. 306; Delaware etc. R. Co. v. Cadow, 120 Pa. 559; Chartiers Tp. v. Phillips, 122 Pa. 601; Lancaster City v. Kissinger, 11 W.N. 151.

Mr. Charles Corbet and Mr. J. E. Calderwood (with them Mr. R. C. Winslow), for the appellee.

Counsel cited: (1) Elkins v. Insurance Co., 113 Pa. 386; School Fur. Co. v. School D., 122 Pa. 502; Howard Express Co. v. Wile, 64 Pa. 201; Longenecker v. Railroad Co., 105 Pa. 328. (2) Altoona City v. Lotz, 114 Pa. 238; Millcreek Tp. v. Perry, 20 W.N. 359; Kingston Tp. v. Gibbons, 18 W.N. 334. (3) Beach on Cont. Neg., § 77; Wharton on Neg., § 403; Penna. R. Co. v. Coon, 111 Pa. 430; Schum v. Penna. R. Co., 107 Pa. 8; Delaware & H. Canal Co. v. Webster, 18 W.N. 339; Pottstown Iron Co. v. Fanning, 114 Pa. 234; Jackson Tp. v. Wagner, 127 Pa. 184; Plymouth Tp. v. Graver, 125 Pa. 24.

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

OPINION

JUSTICE MITCHELL:

Several of the plaintiff's points, which were affirmed without qualification, stated the law rather heavily against the township; but the latter apparently relied on its own points for a corrective, and they were substantially affirmed, with the exception of the eighth. We may assume therefore that, on the whole, the jury were satisfactorily instructed, and we have to consider only the single assignment of error, that the court should have affirmed the eighth point, and directed a verdict for the defendant.

This has required a careful examination of the whole evidence in the case, but we do not think it necessary to review it in detail. Assuming, as we must, where the judge is asked to decide the evidence insufficient as a matter of law, that the jury believed the witnesses for the plaintiff, they established the following facts in relation to the accident The road was not opened of its full legal width of thirty-three feet at the point in question, but was about one third that width, and cut into the hillside, so that on the left of the plaintiff, as he was driving, was a rising bank, and on his right a slope downwards to a fence, some five or six feet distant. The steepness of this slope was variously estimated by the witnesses, but none of them make the entire fall from the edge of the road to the fence more than three feet. Hugus, a witness for plaintiff, says it was two feet, and Henry Smith, another witness for plaintiff, puts it at fifteen to eighteen inches. Hackendorn, the surveyor, makes it considerably less even than that. It was not, therefore, inherently a place of peril, and did not at all come within the class of localities to which the principles of Plymouth Tp. v. Graver, 125 Pa. 24,...