Township of North Manheim v. Arnold

• Decision Date: 26 March 1888
• Docket Number: 143
• Citation: 119 Pa. 380,13 A. 444
• Parties: NORTH MANHEIM TP. v. CLARA ARNOLD
• Court: Pennsylvania Supreme Court

13 A. 444

119 Pa. 380

NORTH MANHEIM TP. v. CLARA ARNOLD

No. 143

Supreme Court of Pennsylvania

March 26, 1888

Argued February 16, 1888

ERROR TO THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY.

No. 143 January Term 1887, Sup. Ct.; court below, No. 162 May Term 1885, C.P.

On March 26, 1885, Charles Arnold and Clara Arnold, in right of said Clara Arnold, brought case against the township of North Manheim, to recover damages for the loss of a horse, broken sleigh and harness.

At the trial on May 27, 1886, the material facts shown were: In March 1885, Mrs. Arnold and her sons, Nathaniel and Jonathan on their way by the public highway to Orwigsburg, in a sleigh, crossed the Philadelphia & Reading railroad at Landingville, when they observed a truck car standing on the track loaded with lumber. On their return, at 8 or 9 o'clock at night, Mrs. Arnold walked ahead across the railroad track on account of the difficulty of drawing the sleigh over. The lumber had been unloaded. Upon both sides of the road, piles of lumber were lying so that there was a passage-way of but about 14 feet 4 inches in a road laid out 33 feet wide. She heard a clatter and looking back saw that the horse had frightened at the lumber piles, was running away down the track, ran into the iron bridge, and was killed.

Henry Drumheller, called for plaintiff, testified inter alia, that lumber had been lying at the road for several days, a good lot of lumber for a long time on the west side:

Plaintiff's I now propose to ask the witness, was there or was there not almost continually, for many years, piles of lumber on both sides, in the road and on the margin of the road, in close proximity to the railroad crossing; for the purpose of showing negligence on the part of the township officials.

The defendant objects that it is immaterial to this issue what lumber was on either side of this road at other times than the one complained of when this horse shied; defendant does not object to the plaintiff showing anything as to the lumber that was there at the time, and the length of time it was there; but to all other lumber the defendant does object.

By the court: We think you may show that they were in the habit of unloading lumber at this place, or you can show the knowledge of the supervisors, that they permitted lumber to remain in the road, as bearing upon their knowledge of the fact that the lumber was there; but you can't recover for any negligence, except the permitting of that particular obstruction that caused your injury. You can't recover for piles of lumber there five years ago and that caused no harm to you. You may show any knowledge on the part of the township officers.

A. It was the custom of the people in the neighborhood to unload their lumber, boards and shingles in and upon the margin of the public road for a long time before the horse was killed and afterwards; it was lying there, as I told you, before, to-day, I can't say how long before; a good time before; whenever there was a lot of lumber there it was generally in the road; it may have been there a couple of years, may be; pretty much all the time there was a botheration there. . . .

On the part of the defendant there was evidence from which it was claimed that Nathaniel drove between the piles of lumber negligently, in that he held the lines with one hand, the other hand being in his pocket.

The court, BECHTEL, J., having reviewed the testimony charged the jury as follows:

We will endeavor now to state to you what is the duty of the township and what is the duty of the parties; then you must take all the testimony in the case and endeavor to ascertain what your verdict should be.

It is the duty of the township officials to keep the public roads or highways in safe condition for the traveling public. They have given to them full power to keep the roads in such condition as will make them reasonably safe for the public to travel upon. A municipal corporation is bound to keep the streets, roads and bridges over which it has jurisdiction in repair, and for a failure to perform that duty the district must answer in damages for any injury occasioned exclusively by the negligence of the officers. We mean, by "exclusively," injuries to which the plaintiff has not contributed by his own negligence. A road or street may be put out of repair by the deposit of obstructions thereon which impede and hinder travel or make it dangerous; or by partial destruction of the roadbed itself, producing the like effect. To repair means to replace, to restore, to put in sound or good condition after injury or partial destruction. Therefore, to repair a road or street, to restore it to its former condition and give it the essential properties of a suitable highway, requires the removal of all obstructions cast upon it, which impede its free passage. . . .

In determining whether or not the defendant has been negligent, you may, among other things, consider the locality of the road, the extent of travel upon it. If it be one on which there is but little travel and not thickly built upon, no such prompt duty to discover the obstruction would be imposed upon the public officials, as if it were one in the heart of a city. Dense population and continuous travel on a street, call for more care and watchfulness on the part of the authorities than over streets not thus populated and used. We direct your attention to these matters as being important to the street placed where it is; the amount of travel over it; the railroad crossing, the place where lumber is unloaded; whether, under the circumstances the obstruction complained of in this case was permitted to remain, if you find it was an obstruction, for such a length of time as made it unreasonable, and therefore made the township guilty or liable for negligence in its officials, in not discovering that obstruction and removing it. And, to ascertain that, you are to consider all the circumstances, together with the testimony; and as our Supreme Court have said, for that is what we have read to you, the circumstances of an obstruction in a street, in a thickly populated town, are different from those in a road in the country. You are to take all the circumstances into consideration and ascertain whether or not the officials were guilty of negligence in not removing it. Then if you find that they were, whether the plaintiff has been guilty of any negligence. We have already stated to you what his duty is. Now, in ascertaining that, you must consider that he was approaching a railroad crossing of four tracks at grade, according to his testimony, between eight and nine o'clock at night. Did he conduct himself in such manner, under these circumstances, as to exercise ordinary care and caution in driving along the public highway? If he did not, if his conduct was not such as showed that he exercised ordinary care and caution in driving along the public highway, under all the circumstances in this case, then he was negligent, and if that neligence contributed, in any degree, to the injuries that were done to the property, then the plaintiff who employed him or put him in that position cannot recover anything from this township, for the reason, as we have heretofore stated to you, that neither you nor the court can separate the injury that he, by his negligence, did, from the injury that the township did by its negligence, and, therefore, the law says there can be no recovery at all under such circumstances. . . .

On the part of the plaintiff we are requested to instruct you as follows:

1. If the jury believe that that part of the public road at and near the railroad crossing, where the accident occurred, was dangerous to travel by reason of piles of lumber on said public road, and on the margin on each side of the road, so as to leave but 14 feet 4 inches in width for travel, between the piles of lumber, and that such piles of lumber so located were calculated to frighten plaintiff's horse, and did frighten plaintiff's horse, the township is liable in damages for the horse, sleigh and harness.

Answer: To this we say: We have heretofore stated to you the duty and the liability of the township, and now say, if you find the facts to be as they are here stated, and further find such obstruction continued for such a length of time as to make the delay to remove it negligence in the officials, then this point is affirmed. Of course, you must also find that the plaintiff did not contribute to that injury by his own negligence.

2. That it is the duty of the township authorities to keep the road so free from obstruction that even a skittish horse may be employed without danger.

Answer: We affirm this.

3. If the pile of lumber on and upon the margin of the public road, leaving only 14 feet 4 inches between the piles of lumber for travel, was permitted to remain for a long time at a point in the bend of the road, and at and near the railroad crossing, and these circumstances were such as would render the accident not only possible but probable, it was the duty of the supervisor to provide against such a probability, and the want of such provision is negligence per se.

Answer: To this we say: Affirmed. But we say to you that the plaintiff cannot recover for such negligence, unless you find that such negligence was the exclusive cause of the damage to her property.

The defendant requests us to instruct you as follows:

1. The plaintiff was bound to use ordinary care and caution, and if the driver could, by such care, have avoided the accident, the plaintiff cannot recover. The least contributory negligence will prevent recovery.

Answer: We affirm this.

2. If the jury believe the evidence of Amos Brown and Irvin Deibert, and are satisfied from that evidence...