Closser v. Township of Washington

11 Pa. Super. 112, 1899 Pa. Super. LEXIS 115

• Court: Superior Court of Pennsylvania
• Decided: July 28, 1899
• Docket: Appeal, No. 20
• Status: Published

Opinion

Opinion by

Beaver, J.,

This case is not without difficulty and in some of its minor aspects is undeniably close. Viewing the end from the beginning, however, and taking into consideration the charge of the court, the answers to the points of both plaintiff and defendant and the verdict of the jury, we are of the opinion that the judgment should be sustained.

The plaintiff, riding on horseback in company with a neighbor, in going from a neighboring town to his home in the nighttime, passed over the ordinarEy traveled road and, so far as the evidence shows, the only road which led to his home. The night was dark, the road at its narrowest point, according to the plaintiff’s testimony, was nine and one haE feet wide; according to that of the defendant, teh and one half feet. Upon the one side of the road was an abrupt embankment, caused by the excavation of the road; on the other side, a declivity terminating in a small run at the bottom. The plaintiff’s horse, being next the declivity, was frightened by a splash in the stream — whether caused by the plunge of a muskrat or the drop of a stone is not known. The horse became frightened, suddenly drew back, made a plunge or two forward and went down the declivity, falling upon the person of the plaintiff and breaking the lower bones of his leg, in consequence of which he was confined to his house for several months, was put to considerable expense, was subjected to loss of time in Ms business and endured much physical suffering.

The plaintiff’s counsel offered to ask the witness the following question: “I ask the witness to state what damage he has suffered in his opinion as the result of this accident, taking into consideration the doctor bills he has paid and the pain he has suffered, up'to the present time, and from the care that had to be taken of him, the loss to his business, — all the damages suffered by him as the result of the accident.” This was objected to as incompetent and irrelevant, the objection was overruled and the evidence admitted. This constitutes the first assignment of error. It is very evident that the question did not involve nor did the plaintiff give an opinion as to the amount of his damages. He was the only person who had knowledge of all the facts and his testimony, therefore, was scarcely an opinion but a conclusion, based upon facts. Were they, however, such facts as authorized him, under the law, to state a conclusion measured by dollars and cents ? Some of the reasons which he gave for the conclusion which he reached were entirely inadmissible and would undoubtedly have been ruled out, if objected to at the time. For instance, he was allowed to say, without objection, “ I would not take any money to go through it again,” and, after saying that his damages amounted to $4,000, he said, in reply to another question, “ I could have made that amount of money, while I was lying in bed.” These did not constitute a proper basis for the computation of damages, nor should he have been allowed to measure his physical suffering by a money standard. It is somewhat difficult to state the rule governing this subject in a satisfactory manner. It has not been very clearly defined, because it is not clearly definable. In Baker v. Pennsylvania Co., 142 Pa. 503, a case followed by later ones along the same line, it is said: “ There is no market in which the price of a voluntary subjection of one’s seif to pain and suffering can be fixed. There is no market standard of value to be applied and to suggest the idea of price to be paid to a volunteer as an approximation to the money value of suffering is to give loose rein to sympathy and caprice. The true rule is that, in addition to loss of time and expenses actually incurred by the plaintiff, by reason of the injury, the jury may consider also the nature of the injury, the pa,in and inconvenience resulting from it and make such allowance therefor as, in view of all the attending circumstances, may seem to be just and reasonable.” It would seem, however, that the jury, although expected to make an allowance in money, are not to be aided in reaching a conclusion as to what is just and reasonable by the testimony of the plaintiff, his physician or any one in his behalf, to measure the amount of his suffering and inconvenience by a money standard. It is easy to see and point out the weak places in this rule, but it is extremely difficult to formulate one which will be more satisfactory, as has been clearly demonstrated by numerous efforts in that direction. It is not our province, however, to attempt this and we simply accept it, as laid down .by our highest judicial tribunal. Mr. Justice Williams continues in the case above quoted: “ The age, the health, habits and pursuits of the plaintiff must be taken into consideration in determining what is a reasonable allowance for inconvenience and suffering in any given case. The absence of a cruel or wanton purpose in the defendant must not be overlooked. From the whole case, the question is, what is a reasonable allowance for the suffering necessarily endured? This question is for the jury, subject, nevertheless, to the supervisory control of the court whose duty it is to set aside everything that is unreasonable and excessive.” If this case rested upon the testimony of the plaintiff admitted under the offer above quoted, or if it were apparent that it had materially influenced the verdict, we would consider it our duty to sustain the objection and reverse the judgment; but, inasmuch as the charge of the court lays down the true rule in regard to damages, with substantial accuracy, and the jury seems to have entirely disregarded the testimony of the plaintiff in regard to the amount of his damages, we cannot see that the defendant has suffered by the error complained of. As was said in Brown v. Kolb, 8 Pa. Superior Ct. 413: “ In view of the manner in which the case was submitted to the jury, the admission of the evidence was harmless, even if it was erroneous. It is too well settled to require the citation of authority that a judgment will not be reversed for an error which could have done (or evidently did) the appellant no harm.” See also 1 P. & L. Dig. of Dec. 1045, pl. 1570-1573; Patterson v. Gas Co., 172 Pa. 554. The first assignment of error is, therefore, overruled.

The second assignment relates to an offer made by the defendant to prove by the neighbor who accompanied the plaintiff “ that the particular part of the road where it is alleged Mr. Closser received the injuries was smooth and safe and convenient for travel and. that the bank on the edge of the road where it is alleged the mare turned off the road was not dangerous, so as to require the putting up of a fence or guard for the purpose of rendering the road safe for travel.” This, upon objection, was rejected and constitutes the second assignment of error. Surveyors or engineers for both plaintiff and defendant made careful surveys of the road, the safety of which was involved in the controversy, at or near the point at which the accident happened. Diagrams or drawings of their work were in evidence, as were photographs showing the exact locality. The road had been described fully and clearly by the witnesses. There could have been no difficulty whatever on the part of the jury in understanding these descriptions and in seeing from the work of engineers and photographers just what the condition of the road was. An opinion as to whether it was dangerous or otherwise was, therefore, not only unnecessary but, because it was so, was also incompetent. The admissibility of such an opinion depends upon its necessity. “ But, as necessity is the ground of admissibility, the moment the necessity ceases the exception to the general rule that requires of a witness facts and not opinions ceases also; hence, whenever the circumstances can be fully and adequately described to the jury and are such that their bearing on the issue can be estimated by all men, without special knowledge or training, opinions of witnesses, expert or other, are not admissible: ” Graham v. Pennsylvania Co., 139 Pa. 149. In the further consideration of this latter case Beatty v. Gilmore, 16 Pa. 463, is discussed and explained, and the principle quoted has been followed in Platz v. McKean Twp., 178 Pa. 601, Auberle v. McKeesport, 179 Pa. 321, Musick v. Latrobe, 184 Pa. 375, Whitaker v. Campbell, 187 Pa. 113, and Wœckner v. Motor Co., 187 Pa. 206.

The offer made by the defendant, as contained in the third assignment of error, is open to the same objection as the one just referred to and was properly rejected.

We can see no error in the answers of the court to the plaintiff’s first, second and sixth points which constitute the fourth, fifth and sixth assignments of error, and they require no special consideration or discussion.

The other assignments of error may all be considered under two propositions. Was the plaintiff guilty of contributory negligence and was it the duty of the court to rule, as a matter of law, that the proximate cause of the accident was the fright of the plaintiff’s horse ? As to the first of these questions, it was fairly left to the jury, under adequate instructions, in the general charge and in answers to points. There was evidence upon which such submission was properly made and as to it the verdict is conclusive.

As to the latter proposition, appellant’s counsel argue very strenuously and cite numerous authorities, upon which they apparently confidently rely, that it was the duty of the court to instruct the jury, as a matter of law, that the proximate cause of the accident was the fright of the plaintiff’s horse and that he was not, therefore, entitled to recover. The general rule upon this subject seems to be that where the primary cause is within the control of the plaintiff or is the direct result of human agency of which the municipality has neither knowledge nor notice, or is the result of such extraordinary circumstances that the municipality could not, in the nature of things, have anticipated them or foreseen their occurrence, or where there is an intervening and independent cause these will be regarded as the proximate cause, and the plaintiff will not be allowed to recover, even if there be negligence on the part of the municipality in not establishing and maintaining proper safeguards upon a highway such as existed in this case; but where the accident results from a cause which the authorities of the township could reasonably foresee or apprehend, the fact that no guards or barriers were erected at the side of a highway such as is shown to have been maintained in this case, and the consequent dangerous character of the road will be regarded as the proximate cause and the municipality will be liable in case of a personal injury. A consideration of some of the authorities upon this subject may not be out of place. Chartiers Township v. Philips, 122 Pa. 601, was a case in which the accident was caused by the fall of the plaintiff’s horse which was harnessed with a collar too small which choked it and caused the fall. “ The defendant, in the fourth point, asked the court to charge the jury that, if the accident was caused by the uncontrollable struggle of a choking horse or from this cause concurring with a defect in the highway, their verdict must be for the defendant. To this the court replied: ‘Refused, unless the plaintiff by his negligence contributed to or was the cause of the uncontrollable struggle of the horse.’ The vice of this answer is that the court confounded the effect of an independent cause of the accident with the effect of the plaintiff’s contributory negligence and really held that it required a combination of the two, in order to relieve the defendant from responsibility for the accident. Now the contributory negligence of the plaintiff alone and by itself, if it existed, was sufficient to discharge the defendant from all liability. So also, if the accident was produced by an intervening and independent cause for which the defendant was not responsible. That too would relieve the defendant from liability and this was the meaning and substance in the point. The point should have been affirmed as it stood. It was, however, refused, unless the independent cause was combined with another and quite different agency, to wit, the plaintiff’s contributory negligence, and in this there was error.” In Herr v. Lebanon, 149 Pa. 222, the horse, which was drawing the omnibus in which plaintiff was riding, fell near the middle of a roadway about twenty feet wide and in good condition. The horse fell without apparent cause and, in struggling to regain its feet, went over a declivity in the road, drawing the omnibus after it and injuring the plaintiff. The proximate cause here was held to be the fall of the horse, which being without apparent cause and being under the control of the driver was such a combination of circumstances as could not possibly have been foreseen or controlled by the defendant. Schaeffer v. Jackson Twp., 150 Pa. 145, was the case of the fright of a horse at a donkey drawing a cart loaded with tin cans. The horse ran away, wrecked one of the wheels which dragged upon the ground, until it came to a hole negligently left in the highway by the township, when the occupants were thrown out and injured. Here was a combination of causes for which the township was not responsible, because neither under their control nor foreseeable, — the fright of the horse at the unusual sight of a donkey drawing a cart loaded with tin cans and the condition of one of the wheels of the vehicle which gave way in the runaway which followed the fright. The fright of the horse was here held to be the proximate cause and the township was declared not liable. In Kieffer v. Hummelstown, 151 Pa. 304, the fright of the horse was caused by the firing of guns. The horse upon which the plaintiff was riding being the saddle horse of his team, became frightened at the discharge of firearms in the hands of other persons and fell against a stone pile in the roadway, in consequence of which the plaintiff’s leg was crushed. Held, that the plaintiff was not entitled to recover, as the accident was caused by an extraordinary circumstance against the consequences of which the borough was not bound to take precautions. Willis v. Armstrong County, 183 Pa. 184, was a case in which the traces of the harness by which the wagon in which the plaintiff rode was being drawn broke, the wagon being freed from the horse ran back down grade over an approach to a bridge not provided with a guard rail into the stream, resulting in personal injuries to the plaintiff. Held, that the breaking of the harness was the efficient and proximate cause and, therefore, the plaintiff could not recover. In the same line are Habecker v. Lancaster, 9 Pa. Superior Ct. 553, and Card v. Columbia, 191 Pa. 254. In Heister v. Fawn Twp., 189 Pa. 253, the plaintiff endeavored to drive around cattle lying in the road. He took the risk of so doing instead of driving them away. One of them rose, when opposite them, frightening his horse, and the vehicle in which he and lfis wife were riding was precipitated down an embankment, resulting in personal injuries. In this case a nonsuit was granted which the court below refused to take off, which was affirmed in the Supreme-Court. The decision m this case did not rest upon the question of proximate cause but was distinctly ruled upon the ground that there was an absence of any sufficient evidence of negligence on the part of the defendant.

The facts of the case under consideration clearly distinguish it from any and all of the cases above referred to. The accident occurred upon a dark night, the plaintiff was riding an ordinary horse which his wife and children were in the habit of driving. It is true that there was some evidence as to his having used rather emphatic language in regard to its foolishness. This was denied but, even if true, it would be accounted for by Ms excitement and the condition in which he found himself after the accident. The accident occurred at a point at which it would have been absolutely impossible for two vehicles to pass, being, according to one witness, nine and one half feet and, according to the defendant’s own testimony, ten and one half feet wide. The cause of the fright of the horse was one which should have been foreseen. A stream ran at the foot of the declivity below the road and the plunge of an acquatic animal or the fall of a stone loosened from the roadside was such an ordinary circumstance as should have been foreseen by the municipal authorities. Indeed the narrowness of the road was such as of itself to have suggested to the authorities the necessity for some provision for the safety of the traveling public. In Herr v. Lebanon, supra, it was said: “ If, therefore, in the ordinary use of the street, one had been crowded over the bank by the volume of the travel, by the sudden shying of his horse or by reason of an accumulation of ice upon the roadway, the absence of the barrier might justify a recovery, if the plaintiff was not guilty of contributory negligence and so in part the author of his own misfortune.” In Hey v. Philadelphia, 81 Pa. 44, the horse was frightened by a locomotive, turned and upset the carriage and, there being no barrier on the road, fell, with the carriage, hito the river and was drowned. Held in this case that the failure to put up a barrier was evidence of negligence on the part of the city, Mr. Justice Gordon, in delivering the opinion of the court, saying: “ A road may be perfectly safe under some circumstances and very unsafe under others. A way of ten feet in width in the open country may be as secure as one of ten times that width; but along the brow of a precipice such a way would be very insecure. Perhaps indeed a steady, sure-footed team, handled by a cool and skilful driver, may pass over it as securely as over the former; but drivers of only ordinary nerve, with fractious teams, are unsafe upon it, and it is suggested for this reason that such a road should be provided with guards which, under ordinary circumstances, would not be essential. As was said per curiam in the case of Lower Macungie Twp. v. Merkhoffer, 71 Pa. 276, ‘ A roadway must be kept in such repairs that even skittish animals may be employed without risk or danger on it,’ so we have held that where a horse frightened and backed off a bridge the township was responsible for the loss resulting therefrom, because of the neglect of the supervisors in not providing side railings by which, notwithstanding the fright of the horse, the accident might have been prevented: Newlin Twp. v. Davis, 77 Pa. 317. Had this accident happened upon an open and unrailed bridge under circumstances similar to those exhibited by the evidence now under consideration, there could be but one opinion as to the liability of the city. In such case the proximate cause of the disaster would be so obvious that no one could avoid its observance.” See also Yoders v. Amwell Twp., 172 Pa. 447. In this case, many of the authorities upon the subject are cited and commented upon and, in his opinion, Mr. Justice Dean says: “ As already noticed it cannot be questioned under the authorities that defendant might and ought to have foreseen the danger to ordinary travel from a narrow bridge, without guard rails. It is alleged, however, that the special facts take this out of the cases of ordinary and foreseeable travel. Do they ? It may at once be conceded that, if the traveling public always or generally drove only very gentle and easily managed horses in daylight, at a slow gait, over very narrow bridges, such an accident as here happened would not have been the natural and probable consequence of a neglect to put up guard rails, for then the circumstances in this case would have been extraordinary; but no such limited use of a public highway would be made in any township in the state and this the authorities well knew. That it would be traveled by night and day, by those driving gentle and spirited animals — some that would take fright, others that would not, was known to them. If, with such knowledge, this accident might or ought to have been foreseen and with reasonable care have been provided against, then was their negligence the proximate cause of the injury.”

It is needless to multiply authorities. They are numerous and, when carefully read, do not in any way contradict each other. The question of the proximate cause of the accident was left to the jury. Their finding establishes the fact that the proximate cause was the narrowness of the way and the absence of guard rails and that the plaintiff was not guilty of contributory negligence. The recovery, therefore, was clearly justified and, the moderate amount of the verdict clearly showing that the plaintiff’s testimony as to the amount of his damages was not seriously considered, we think the judgment entered upon the verdict should stand, notwithstanding the admission of the testimony complained of in the first assignment of error.

Judgment affirmed.

Oklady, J., dissents.