Thubron v. Dravo Contracting Co.

• Decision Date: 06 January 1913
• Docket Number: 123
• Parties: Thubron v. Dravo Contracting Company, Appellant
• Court: Pennsylvania Supreme Court

86 A. 292

238 Pa. 443

Thubron v. Dravo Contracting Company, Appellant

No. 123

Supreme Court of Pennsylvania

January 6, 1913

Argued October 24, 1912

Appeal, No. 123, Oct. T., 1912, by defendant, from judgment of C.P. Allegheny Co., March T., 1908, No. 69, on verdict for plaintiff in case of William J. Thubron v. Dravo Contracting Company. Reversed.

The facts are stated in the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $2,000. Defendant appealed.

Error assigned, inter alia, was the refusal of binding instructions for the defendant.

The judgment is reversed.

W. D N. Rogers, with him John C. Slack and O. S. Richardson, for appellant. -- The failure to erect a barrier at the bridge was not the proximate cause of the accident: Schaeffer v Jackson Twp., 150 Pa. 145; Card v. Columbia Twp., 191 Pa. 254; Nichols v. Pittsfield Twp., 209 Pa. 240.

Thomas M. Marshall, with him Thomas M. Marshall, Jr., for appellee. -- The case was for the jury: Boone v. East Norwegian Township, 192 Pa. 206; West Mahanoy Township v. Watson, 116 Pa. 344.

Before FELL, C.J., BROWN, MESTREZAT, POTTER and STEWART, JJ.

OPINION

MR. JUSTICE STEWART:

The plaintiff sought in this action to recover for the loss of two horses which were killed under the following circumstances. The horses had been in the care and custody of the owner's servant, who was leading them at night time through a public street in the City of Pittsburgh, on the way to the stable where usually kept. The evidence shows clearly that, either through the negligence of the servant, or because of unexplained fright, they escaped from the control of the servant and ran in the direction in which they were being led, but too far for their own safety. In continuing straight on after a certain point had been reached, they were not following the route on which they would have been led but one which ended a short distance beyond on the bank of the Allegheny river. There had been a bridge at this point, but it was being removed by the city through defendant as contractor for the work. No sufficient barriers at the terminus of the street on the bank existed, and in consequence, the horses being without control, when they reached this terminus, plunged over a high embankment into the river and were killed by the fall. The sole question in the case is, what was the proximate cause of the accident? The defendant's negligence in failing to erect barriers on the embankment may be conceded, but liability for plaintiff's loss does not result therefrom, except as such negligence was the proximate cause. Mere concurrence of one's negligence with the proximate and efficient cause of the disaster will not create liability. But for the escape of the horses from the control of the party in charge the accident would not have happened. For that escape defendants of course were not liable. Our own cases leave us in no doubt as to the correct rule to be applied where such conditions as these presented here exist. It should first be observed, that the measure of duty with respect to the maintenance of barriers on the river embankment was neither more nor less than the duty that would have rested on the city had it undertaken the work of removing the bridge otherwise than through a contractor. It follows that the cases we cite are none the less governing because of the fact that in each the negligence charged was failure on the part of a municipality to maintain the highway in a reasonably safe condition for public travel. Beginning with Jackson Township v. Wagner, 127 Pa. 184, and repeated in Schaeffer v. Jackson Township, 150 Pa. 145, Willis v. Armstrong County, 183 Pa. 184, Nichols v. Pittsfield Township, 209 Pa. 240, and others which might be cited, we have uniformly held that dangers which a runaway horse may encounter in his erratic course are not such as the municipality is bound to provide against; its duty in this respect being measured alone by reasonable regard for the safety of the ordinary traveler, himself exercising reasonable care and prudence. Whenever in any of our cases a municipality has been held liable for damages resulting through a frightened horse, it has appeared as a fact that the horse took fright at a point on the highway where it was in unsafe condition, and the disaster followed as an immediate consequence. There is a clear distinction between cases of this character and cases like the one we are now dealing with, and nowhere is this distinction more clearly recognized and explained than in Schaeffer v. Jackson Township, supra. HEYDRICK, J., delivering the opinion there says: "It is a general rule as well settled as anything in the law of negligence that a man is responsible for such consequences of his fault as are natural or probable, and might therefore be seen by ordinary forecast, but if his fault happen to concur with something extraordinary, and therefore not likely to be foreseen, he will not be answerable for the extraordinary result. The rule applies in actions against municipalities and quasi municipal corporations as well as to natural persons and private corporations. The concurrence of that which is ordinary with a party's negligence does not relieve him from responsibility for the resultant injury. Examples of such concurrence may be found in cases where by reasons of causes known to the public authorities horses are likely to become frightened and in their sudden fright plunge over an unguarded precipice, or rush upon some danger in the highway for the existence of which the authorities are responsible. In such cases the consequences of the neglect of duty are...