Hill v. Township of Tionesta

1. One who undertakes to use a public road, knowing that it is unsafe and' knowing the defects which make it so, but not choosing to avoid them, although he could do so by taking another road, cannot recover against the township for an injury resulting from such defects. 2. In such a case, when the facts are undisputed, the inference of contributory negligence is an inference of law which it is the duty of the court to declare; and on request so to do, the court should give the jury binding instructions to render a verdict for the defendant.

No. 229 October Term 1891, Sup. Ct.; court below, No. 9 December Term 1889, C. P. On October 16, 1889, C. A. Hill brought trespass against Tionesta Township, to recover damages for injuries to the plaintiff’s horse, alleged to have resulted from negligence on the part of the defendant township. * The defendant’s plea was not guilty. At the trial, on December 18, 1890, the following facts were shown: Fo* many years a public road had been in existence and in use along the west bank of the Allegheny river within the limits of the defendant township. It occupied a narrow strip of ground, bounded, on the side away from the river, by a steep bank. In 1866, a railroad was constructed along the river, in many places encroaching upon the bed of the township road. At the time and place of the accident to the plaintiff’s horse, the latter road was so narrow that there was» room for but a single wagon track between the ends of the railway ties and the river bank, and in using it the wheels of a vehicle would pass within one foot of the edge of that bank. The surface of the roadway was about three feet below the level of the railway track, and about sixteen feet above the river. There was no barrier or guard on the river side of the road. The roadway was in bad condition, deep ruts having been worn in it by the travel upon it. In December, 1887, the plaintiff had occasion to haul a number of loads of lumber between two points connected by the said road. The weather at that time was freezing at night and thawing in the daytime. After safely sending two loads over another road, from one and one half to two miles longer than the road in question, and several loads over this road, he sent a team with a heavy load of lumber by the latter road, in charge of his brother, George T. Hill. While passing along the narrows, at the place between the railroad and the river above described, one of the horses stepped into a deep rut or hole in the wagon track, and in the endeavor to extricate itself fell over the river bank and was injured. The driver testified that he had not seen this rut until -the horse got into it, although he had hauled several loads over that road within two or three days. The plaintiff and his drivers testified that the road, at the place of the accident, had for sometime been known to them to be in a dangerous condition, and was regarded by them as an unsafe road to drive on. Parts of their testimony on this subject are quoted in the opinion of the Supreme Court, infra. • William Hood, a witness for the defendant, testified that before the plaintiff’s teams commenced hauling lumber, the plaintiff spoke to the witness, under the impression that the latter was one of the road commissioners of the township, and asked him to fix the road, stating that he had been over it and found it in bad condition and would like to have something done to it, as he was about to do some hauling over it; that the witness remarked that a man would be crazy who would undertake to do hauling over that road, and advised the plaintiff to take the other one, but the plaintiff said it was too far around and he would rather take his chances on this road. The plaintiff was not called to deny this conversation. In the plaintiff’s rebutting case, George T. Hill who had testified in plaintiff’s case in chief to having hauled a load over the other road, prior to the trip on which he met with the accident, was recalled and testified that a part of the other road referred to was in very bad condition: “ Q. Was it a dangerous road? A. Yes, sir. Q. How was it as compared with the road along the narrows here, as to danger ? A. I considered it more so; I was afraid to drive it, it was very sideling, and parts of it very bad. Q. Was this before or after the injury? A. Before.” On cross-examination, the witness stated that he and Truman Hill, plaintiff’s other teamster, first hauled several loads over the river road, and then hauled one load each over the other road, after which they went back to the river road. At the close of the testimony, the court, Brown, P. J., charged the jury in part as follows: The principal question is the right of the plaintiff to recover, and [I will say a word in regard to that road, which perhaps ought to have no influence upon you, but I think it a matter of interest to the public. It appears that many years ago, just how many I don’t know, the railroad took possession of a public road in Tionesta township. The law provides a method by which the officers of the township may compel the railroad,—no matter at what cost, and I think no matter after what expiration of time,:—to build a road equally as good as the road that they took. It does not appear that any steps have been taken, as against the railroad, to enforce that duty. So far as appears, the railroad corporation has taken possession of a road that belongs to the public of Tionesta township. It was opened for the use of the inhabitants of the commonwealth, and they have taken it without making it good to the township. This is the outside of the case, but I speak of it as indicating the rights that, in my judgment, the township have against the railroad.] 1..... The first question of fact that seems to be disputed is the question of negligence on the part of the road commissioners, or negligence on the part of the township.....And we say to you that if the road commissioners of a township, or if the township itself, which is the same thing, takes all its resources and places them on certain roads, without making a fair disposition of the funds, then they are guilty of negligence. Now, [you are to determine whether the township authorities were wanting in taking proper care of this road. If they were, and the injury to Mr. Hill’s horse resulted from the bad condition of the road, and that from the want of care by the road commissioners of the township, then the township is liable,] 3 unless the plaintiff, himself, has been guilty of contributory negligence.....[You are to determine in the first place, this question: Did the injury to the plaintiff’s horse result from the neglect of the defendant to keep the road in proper condition ?] s..... It is said on the part of the defendant that there was another road that the plaintiff might have taken. In determining whether he should have taken that road or not, we come back to the other question, as I have stated it: Would an ordinarily prudent man take the other road, of which you have heard the evidence, or would he take the road down the river ? It does appear from the testimony that many, at least, drove over the river road; that it was used by the public. Should Mr. Hill’s driver have ventured upon the road-at all? Was it an act of recklessness, or was it doing what ordinarily prudent men did ? If it was simply that, then there could be no contributory negligence charged to the plaintiff. If, knowing the road was dangerous, and that there was a better road, one less dangerous and equally good and safer, you may conclude, but that is for you, that that road ought to have been taken. In determining this, you will take in consideration the condition of that road; you have the testimony before you as to that..... The defendant requests the court to charge : 2. The plaintiff and his driver having both testified that the road or place where the accident occurred was unsafe and dangerous at the time of the accident, and had been for a long time before, and that they knew its condition both before and at the time of the accident; and, it appearing from their evidence they knew that there was another road which they might have traveled in safety, they should have taken the safe road, and when they did not, the verdict of the jury should be for the defendant. Answer: This point is refused. It asks the court to determine questions of fact belonging to the jury ; but, we may say as we have said in the general charge, that if the condition of the road, at the time of the accident, was such that an ordinarily careful man would not have driven his team over it; or, if it appears that the road was dangerous and a person of ordinary prudence and care would have taken the other road of which evidence has been given, then the plaintiff would not be entitled to recover.4 3. It appearing from the evidence that the plaintiff, a short time before driving his team on this road, notified Vm. Hood, whom he supposed to be a road commissioner at the time, that he had some hauling to do with his team over this road, and that the road was. dangerous and in an unsafe condition, and wanted him to repair it; that, being told by Mr. Hood that if it was dangerous he had better not go on it with his team, he replied, “I’ll go on it and take my own chances,” he thus released the township, and the verdict should be for the defendant. Answer: This point is affirmed; provided, and only provided, you find from the evidence that the plaintiff was reckless in driving over the road, or wanting in ordinary prudence in venturing upon it.5 6. Under all the evidence in the case, the verdict should be for the defendant. Answer : This is answered in the negative. We leave it to the jury, under the instructions that we have given in the general charge and answers to the points, to determine whether the verdict shall be in favor of the plaintiff or defendant.6 7. Unless the jury find that the defendant was negligent in not repairing the rut that plaintiff says caused the accident, there can be no recovery. Answer: This point is answered in the affirmative; but we say that if the defendant was negligent in not looking after the conditipn of the road, which was their duty, and the rut was occasioned in consequence of such negligence, by their oversight, or their want of attention to it, then the plaintiff may recover.7 —The jury returned a verdict for the plaintiff for 1116.66. A rule for a new trial having been discharged, Noves, P. J., and judgment entered, the defendant took this appeal, assigning inter alia for error: 1, 2. The parts of the charge embraced in [ ] 1 a 4-7. The answers to defendant’s points.4 to 7