Opinion,
Mr. Justice Green :
The only question that needs consideration in this case is [17]*17the alleged contributory negligence of the plaintiff in sending out his team over the road in question. It was proved by the witnesses on both sides that the road was extremely narrow in places, that the wagon track at the place of the accident was within a foot of the edge of the bank, and that the descent of the bank to the river was about fifteen feet. The plaintiff’s mare stepped into a deep rut or hole with one of her feet, and was injured by falling over the bank while her foot was fast in the hole or rut. It was proved by the plaintiff’s witnesses that the road was much cut up with ruts and holes, and that the surface was freezing at night, and thawing in the daytime.
The defendant’s second point asked for a binding instruction, upon the testimony of the plaintiff and his witnesses, that there could be no recovery, because the plaintiff and his driver both testified to the unsafe and dangerous condition of the road, that they were both acquainted with its condition before and at the time of the accident, and that they knew of another road, by taking which the dangers of this road could be avoided. The court declined to affirm the point, saying it asked the court to determine a question of fact, which belonged to the jury. Of course, if there was doubt about the contributory negligence of the plaintiff, the question should have gone to the jury; but the point claimed that there was no douht on this subject, because the plaintiff himself, and his witnesses, also, testified to the fact of his and their knowledge of the dangerous condition of the road, and that the plaintiff used the road notwithstanding such knowledge. If the facts stated in the point were true, and there was no contest about them, then the inference of contributory negligence was an inference of law which it was the duty of the court to declare. We have therefore, simply to examine the testimony, and see if it supported the contention of the defendant contained in the point.
The plaintiff, having testified that he knew the road for many years, and had often traveled over it, was asked: “ Q. What was the condition of that portion of the road where the horse was hurt? A. It was very narrow, and deep holes in the road.....Q. Wasn’t it a safe road to drive on? A. I didn’t call it a safe road; it was unsafe, I considered it. Q. Was it an unsafe road to drive on? A. Yes, sir. Q. Was [18]*18it dangerous to haul such loads as you hauled over it? A. No more dangerous in hauling those than any others, that I, know of; I didn’t call it a safe road at all. Q. For any hauling? A. For any hauling. Q. How long had you known it not to be safe ? A. I had been over the road a short time before we commenced hauling; I knew that the road was an unsafe road for some time. Q. You say, a short time before you began hauling you were along the road, and knew it was not a safe road? A. Yes, sir...... Q. At the time you had this hauling done, you knew it was an unsafe road ? A. I knew it was an unsafe road; of course I did.” George T. Hill, the plaintiff’s brother and teamster on this occasion, testified to the occurrence of the accident by the mare getting her foot in the hole in the road, and falling over the bank while her foot was fast. He was asked: “ Q. State the condition of that road. A. Well, it was narrow; the outside track was about a foot from the bank; the inside track was about five or six feet from the railroad; the end of the ties, I should judge, was about two and one half or three feet from the bed of the road. Q. Could you have driven any closer to the railroad than you did? A. No, sir; I could not.” On cross-examination, he said he had hauled three or four loads over the road before the one at which the accident had occurred, and was asked: “Q. Was the road in good condition? A. I didn’t think it was. Q. Do you say it was a dangerous road? A. I said it was not very-safe. Q. Was it an unsafe road? A. It was unsafe at that time, I think.”
Truman Hill, the plaintiff’s son, was also hauling with another team at the time of the accident. He described the accident, and was asked : “ Q. What was the cause of the accident? A. The road being bad. Q. In what way was it bad ? I wish you to state exactly the whole situation. A. It was rough, narrow, and full of holes all along, pretty much all the way. Q. State whether the road was wide there at the place of the- accident, or whether it was narrow. A. It was narrow; it was about a foot from the outside wagon track to the bank, and probably six inches from the inside wheel track to the bank next the railroad. Q. Was there any way to evade that or go around it? A. No, sir..... Q. From the condition of that road where this accident happened, and other [19]*19places, was it a safe road to travel, or dangerous? A. Well, it was not a safe road.” On cross-examination, he was asked: “ Q. What was the condition of this road as to being a safe or an unsafe road, the river road? A. I would call it an unsafe road. Q. How long had it been unsafe? A. Ever since I knew it, thirteen or fourteen years now. Q. Why was it unsafe ? A. Because it was narrow; if a horse made a misstep, it was likely to go over the bank. Q. Wasn’t that a pretty good road there ? A. No, sir; it was not what I would call a good road. Q. You would not say it was an unsafe road, would you ? A. Well, I think it was.”
It will at once be seen from the foregoing testimony that the plaintiff and both of his teamsters were thoroughly acquainted with the road, its defects, and its unsafe, and indeed dangerous character. They knew that there were holes and ruts in the road. They knew the extreme narrowness of the road, so that at the point where the accident occurred there was but a single track to travel in, and that the bank was only a foot distant from the outside wheel.' The accident happened in consequence of conspicuous defects which were perfectly manifest, and the injury was sustained in the very way that might have been expected, to wit, by the mare falling over the bank upon the verge of which she was walking.
The plaintiff testified that he had complained about the condition of the road to one of the road commissioners a few days before he commenced hauling, and wanted him to fix it. One who had been a commissioner, a Mr. Hood, testified that the plaintiff had spoken to him about the road as if he were still a commissioner, a very few days before the plaintiff commenced hauling, and wanted him to fix the road. He further said that he told Hill that “ a man must be crazy to undertake to do hauling on that road; ” that he (the witness) had done all he could do on that road; and that he advised Hill to go around by the other road, to which Hill replied “ he would sooner take his chances on this road than go around.” The plaintiff did not den3r this conversation, and there was no reason to question its credibility. The testimony simply confirmed what was alread3r fully proved, as to the plaintiff’s knowledge of the defects of the road, and further showed that he intended to take the risks of the road, and would do so in preference to going [20]*20around by the other road. It was proved by undisputed testimony on both sides that there was another road, somewhat longer, over which the hauling could be done, and as to a few of the earlier loads was done, without incurring the risks which were so very manifest on this road. The case is plainly brought within a long line of decisions which establish as an inference of law the contributory negligence of the plaintiff.
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Opinion,
Mr. Justice Green :
The only question that needs consideration in this case is [17]*17the alleged contributory negligence of the plaintiff in sending out his team over the road in question. It was proved by the witnesses on both sides that the road was extremely narrow in places, that the wagon track at the place of the accident was within a foot of the edge of the bank, and that the descent of the bank to the river was about fifteen feet. The plaintiff’s mare stepped into a deep rut or hole with one of her feet, and was injured by falling over the bank while her foot was fast in the hole or rut. It was proved by the plaintiff’s witnesses that the road was much cut up with ruts and holes, and that the surface was freezing at night, and thawing in the daytime.
The defendant’s second point asked for a binding instruction, upon the testimony of the plaintiff and his witnesses, that there could be no recovery, because the plaintiff and his driver both testified to the unsafe and dangerous condition of the road, that they were both acquainted with its condition before and at the time of the accident, and that they knew of another road, by taking which the dangers of this road could be avoided. The court declined to affirm the point, saying it asked the court to determine a question of fact, which belonged to the jury. Of course, if there was doubt about the contributory negligence of the plaintiff, the question should have gone to the jury; but the point claimed that there was no douht on this subject, because the plaintiff himself, and his witnesses, also, testified to the fact of his and their knowledge of the dangerous condition of the road, and that the plaintiff used the road notwithstanding such knowledge. If the facts stated in the point were true, and there was no contest about them, then the inference of contributory negligence was an inference of law which it was the duty of the court to declare. We have therefore, simply to examine the testimony, and see if it supported the contention of the defendant contained in the point.
The plaintiff, having testified that he knew the road for many years, and had often traveled over it, was asked: “ Q. What was the condition of that portion of the road where the horse was hurt? A. It was very narrow, and deep holes in the road.....Q. Wasn’t it a safe road to drive on? A. I didn’t call it a safe road; it was unsafe, I considered it. Q. Was it an unsafe road to drive on? A. Yes, sir. Q. Was [18]*18it dangerous to haul such loads as you hauled over it? A. No more dangerous in hauling those than any others, that I, know of; I didn’t call it a safe road at all. Q. For any hauling? A. For any hauling. Q. How long had you known it not to be safe ? A. I had been over the road a short time before we commenced hauling; I knew that the road was an unsafe road for some time. Q. You say, a short time before you began hauling you were along the road, and knew it was not a safe road? A. Yes, sir...... Q. At the time you had this hauling done, you knew it was an unsafe road ? A. I knew it was an unsafe road; of course I did.” George T. Hill, the plaintiff’s brother and teamster on this occasion, testified to the occurrence of the accident by the mare getting her foot in the hole in the road, and falling over the bank while her foot was fast. He was asked: “ Q. State the condition of that road. A. Well, it was narrow; the outside track was about a foot from the bank; the inside track was about five or six feet from the railroad; the end of the ties, I should judge, was about two and one half or three feet from the bed of the road. Q. Could you have driven any closer to the railroad than you did? A. No, sir; I could not.” On cross-examination, he said he had hauled three or four loads over the road before the one at which the accident had occurred, and was asked: “Q. Was the road in good condition? A. I didn’t think it was. Q. Do you say it was a dangerous road? A. I said it was not very-safe. Q. Was it an unsafe road? A. It was unsafe at that time, I think.”
Truman Hill, the plaintiff’s son, was also hauling with another team at the time of the accident. He described the accident, and was asked : “ Q. What was the cause of the accident? A. The road being bad. Q. In what way was it bad ? I wish you to state exactly the whole situation. A. It was rough, narrow, and full of holes all along, pretty much all the way. Q. State whether the road was wide there at the place of the- accident, or whether it was narrow. A. It was narrow; it was about a foot from the outside wagon track to the bank, and probably six inches from the inside wheel track to the bank next the railroad. Q. Was there any way to evade that or go around it? A. No, sir..... Q. From the condition of that road where this accident happened, and other [19]*19places, was it a safe road to travel, or dangerous? A. Well, it was not a safe road.” On cross-examination, he was asked: “ Q. What was the condition of this road as to being a safe or an unsafe road, the river road? A. I would call it an unsafe road. Q. How long had it been unsafe? A. Ever since I knew it, thirteen or fourteen years now. Q. Why was it unsafe ? A. Because it was narrow; if a horse made a misstep, it was likely to go over the bank. Q. Wasn’t that a pretty good road there ? A. No, sir; it was not what I would call a good road. Q. You would not say it was an unsafe road, would you ? A. Well, I think it was.”
It will at once be seen from the foregoing testimony that the plaintiff and both of his teamsters were thoroughly acquainted with the road, its defects, and its unsafe, and indeed dangerous character. They knew that there were holes and ruts in the road. They knew the extreme narrowness of the road, so that at the point where the accident occurred there was but a single track to travel in, and that the bank was only a foot distant from the outside wheel.' The accident happened in consequence of conspicuous defects which were perfectly manifest, and the injury was sustained in the very way that might have been expected, to wit, by the mare falling over the bank upon the verge of which she was walking.
The plaintiff testified that he had complained about the condition of the road to one of the road commissioners a few days before he commenced hauling, and wanted him to fix it. One who had been a commissioner, a Mr. Hood, testified that the plaintiff had spoken to him about the road as if he were still a commissioner, a very few days before the plaintiff commenced hauling, and wanted him to fix the road. He further said that he told Hill that “ a man must be crazy to undertake to do hauling on that road; ” that he (the witness) had done all he could do on that road; and that he advised Hill to go around by the other road, to which Hill replied “ he would sooner take his chances on this road than go around.” The plaintiff did not den3r this conversation, and there was no reason to question its credibility. The testimony simply confirmed what was alread3r fully proved, as to the plaintiff’s knowledge of the defects of the road, and further showed that he intended to take the risks of the road, and would do so in preference to going [20]*20around by the other road. It was proved by undisputed testimony on both sides that there was another road, somewhat longer, over which the hauling could be done, and as to a few of the earlier loads was done, without incurring the risks which were so very manifest on this road. The case is plainly brought within a long line of decisions which establish as an inference of law the contributory negligence of the plaintiff. A slight reference to a very few of them will be sufficient.
In Forks Tp. v. King, 84 Pa. 230, we said: “ A person who knows a defect on a highway, and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect: Whart. on Neg., § 440.” In Pittsb. etc. Ry. Co. v. Taylor, 104 Pa. 306, the same doctrine was applied in circumstances much less forcible than in the present case. The present Chief Justice, in delivering the opinion, said: “ A man is as much bound to avoid a known danger on a public highway as anywhere else. Such obstructions are liable to occur. The person or persons by whose negligence they have been placed there, or suffered to remain, may be liable in damages to the parties injured thereby, where they have used reasonable care to avoid such injury; but it would be a harsh rule to hold that, because a man has a right to pass along a public road, he is under no duty to avoid a known danger! Such is not the law.” The case of Erie City v. Magill, 101 Pa. 616, is another instance in which the duty of one passing along a street to avoid a known danger, was enforced in circumstances of great hardship and suffering to the person injured. There are numerous other cases of the same character which might be cited, but it is quite unnecessary.
The present case is an extremely plain one, requiring the application of the doctrine under consideration. The plaintiff does not at all deny, but expressly admits that he knew very well that the road was unsafe to travel, and knew thoroughly the defects that made it so. As a matter of fact, the accident occurred by reason of those very defects. He did not choose to avoid them, though he could have done so; and therefore he takes of his own choice the consequences, which include a legal inability to recover against the township.
The judgment is reversed on the second, fourth, sixth, and seventh assignments of error.
Judgment reversed.