Chief Justice Agnew
delivered the opinion of the court, June 5th 1876.
The duty of keeping public roads in repair is undoubted. But topographical features, population, and taxable ability necessarily [416] govern their original construction. If a township build a single track, bridge over a small stream it must be kept in good repair with sufficient guards. But no one would pretend that a duty lay on the township in ordinary circumstances, to build one with double tracks and footwalks, to guard against collisions. A traveller who would wilfully enter on such a bridge with his carriage when another is crossing upon it with his wagon, could have no claim upon the township if injured by such a folly. Every one appreciates the greater safety of a double track, yet the duty so to build is one of imperfect obligation. In the more mountainous parts of the state, roads are constructed for miles along hillsides, often of solid rock, where it is impossible to open the road to a width greater than a single wagon track, except for turn-outs at intervals. Many of the roads in middle and western Pennsylvania climb high hills, from half a mile to a mile in length, to overcome the elevation, traversing a narrow roadway bounded often by a solid rock on one hand, and a steep declivity on the other. They who know the country, the mountains, gorges, streams, ravines, and chasms; those dizzy heights and profound depths, before which men pause and tremble; they who know the paucity and poverty of the population dwelling in these wilds, or in even more inhabited places, understand 'how vain it is to expect structures there, which population and wealth only, in narrow limits, can rear. The law has recognised this condition, and therefore provides for county bridges where townships are unequal to the cost. It recognises it also in the limitation of the power of taxation for roads to one per centum of the valuation of the taxable property. Another fact must be recognised : that roads, generally, in extent, are in inverse proportion to the population of the townships. The more sparse the population, the greater generally, is the extent of territory, and consequently the length of its roads. As population increases, municipal divisions diminish in size; and their roads diminish in length.
To apply the liability of a township for non-repair to a case of original construction, cannot be thought of. Yet this is the use made of Erie City v. Schwingle, 10 Harris 384, a case which states its own principle in the first sentence of the opinion. “ The principal question (says Black, C. J.) is whether a city corporation, bound by its charter to keep its streets in repair, is liable for an injury occasioned by its neglect to do so.” He cites six cases in the affirmative, not one of which is a case of original construction. This case is cited also to prove that a want of funds is not a defence. But the Chief Justice put the case on the ground that by the charter there was a power to exceed the limit, by the consent of a majority of the inhabitants, and their unwillingness to perform a duty was no excuse for its non-performance, and he said further: “ I will not say that damages can be recovered for an [417] injury like this from a municipal corporation, which has no means at all of raising a corporate fund to repair its roads and bridges. That cannot be a legal duty which the law does not permit to be executed.” How then can that be said to be the duty of a poor township which would require the immense capital of a great railroad corporation to dig down steep hill-sides and blast miles of rock, in order to build a double track wagon-road ? One cent on the dollar of valuation is the limit of the power of the supervisors to tax the people for roads and bridges. The people of a township, unlike the inhabitants of a city, have no power to tax themselves. Judge Dillon notices this difference between corporations proper, such as cities and boroughs, and quasi corporations, such as counties, townships, school and road districts : Dil. on Mun. Corp. § 10, pp. 761, 762, 785, 786. In Pennsylvania the duty of road repair is statutory: Sect. 6, Act June 13th 1836; Rapho v. Moore, 18 P. F. Smith 404. Hence a liability for non-repair is recognised here : Dean v. Milford Township, 5 W. & S. 545. But in original construction of roads and bridges the townships must be governed by their means. To. open a hill-side road with a double track, where it is necessary to blast rocks and dig down steep banks, often would require more taxes than the township can impose, and leave nothing for repairs. We must not forget, when looking at the question of ability, the right of the citizens to work out their taxes, a duty indolently performed often at the highest rate of wages: Miller v. Gorman, 2 Wright 309 ; Childs v. Brown Tp., 4 Id. 332. I have made a calculation of the average taxes per mile of six of the most rural townships of my own county, which had in 1870 one-third more population than Greene county, and about one-fourth less territory, and find it would not exceed twenty dollars per mile of all the roads therein. In the present case $70 were expended on the road in question within less than one-quarter of a mile, and yet effecting but a small improvement.
What are the features of this road ? It is described by many witnesses as running through a long narrows, a high hill on one side, and a precipitous creek bank on the other. Its width was eight to twelve feet, in some places cut out of the solid rock. Its bed, chiefly of stone, was good, bounded by a high wall to hold up the creek side — proper to ride upon, but not to pass, and, therefore, turnouts or passing places were made at short intervals. To widen-the road at its narrowest point, to ten feet, required a cut in the hill-side twenty feet high, thus exhibiting the steepness of the hill, rising two feet in height to one in width' of excavation. These features display the character of the narrows, and the impossibility of making a double track at any feasible expense. Having, in travelling the Seventeenth Judicial District, seen such narrow roads, I readily recognise the diflieulty of making roads in such places, and where the topography of the country often forbids [418] another passage. To say that a township is liable for the folly of one attempting to pass in such narrows, instead of stopping at a turnout, because it has not cut out a double-track road on one cent in the dollar of valuation, is sheer injustice.
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Chief Justice Agnew
delivered the opinion of the court, June 5th 1876.
The duty of keeping public roads in repair is undoubted. But topographical features, population, and taxable ability necessarily [416] govern their original construction. If a township build a single track, bridge over a small stream it must be kept in good repair with sufficient guards. But no one would pretend that a duty lay on the township in ordinary circumstances, to build one with double tracks and footwalks, to guard against collisions. A traveller who would wilfully enter on such a bridge with his carriage when another is crossing upon it with his wagon, could have no claim upon the township if injured by such a folly. Every one appreciates the greater safety of a double track, yet the duty so to build is one of imperfect obligation. In the more mountainous parts of the state, roads are constructed for miles along hillsides, often of solid rock, where it is impossible to open the road to a width greater than a single wagon track, except for turn-outs at intervals. Many of the roads in middle and western Pennsylvania climb high hills, from half a mile to a mile in length, to overcome the elevation, traversing a narrow roadway bounded often by a solid rock on one hand, and a steep declivity on the other. They who know the country, the mountains, gorges, streams, ravines, and chasms; those dizzy heights and profound depths, before which men pause and tremble; they who know the paucity and poverty of the population dwelling in these wilds, or in even more inhabited places, understand 'how vain it is to expect structures there, which population and wealth only, in narrow limits, can rear. The law has recognised this condition, and therefore provides for county bridges where townships are unequal to the cost. It recognises it also in the limitation of the power of taxation for roads to one per centum of the valuation of the taxable property. Another fact must be recognised : that roads, generally, in extent, are in inverse proportion to the population of the townships. The more sparse the population, the greater generally, is the extent of territory, and consequently the length of its roads. As population increases, municipal divisions diminish in size; and their roads diminish in length.
To apply the liability of a township for non-repair to a case of original construction, cannot be thought of. Yet this is the use made of Erie City v. Schwingle, 10 Harris 384, a case which states its own principle in the first sentence of the opinion. “ The principal question (says Black, C. J.) is whether a city corporation, bound by its charter to keep its streets in repair, is liable for an injury occasioned by its neglect to do so.” He cites six cases in the affirmative, not one of which is a case of original construction. This case is cited also to prove that a want of funds is not a defence. But the Chief Justice put the case on the ground that by the charter there was a power to exceed the limit, by the consent of a majority of the inhabitants, and their unwillingness to perform a duty was no excuse for its non-performance, and he said further: “ I will not say that damages can be recovered for an [417] injury like this from a municipal corporation, which has no means at all of raising a corporate fund to repair its roads and bridges. That cannot be a legal duty which the law does not permit to be executed.” How then can that be said to be the duty of a poor township which would require the immense capital of a great railroad corporation to dig down steep hill-sides and blast miles of rock, in order to build a double track wagon-road ? One cent on the dollar of valuation is the limit of the power of the supervisors to tax the people for roads and bridges. The people of a township, unlike the inhabitants of a city, have no power to tax themselves. Judge Dillon notices this difference between corporations proper, such as cities and boroughs, and quasi corporations, such as counties, townships, school and road districts : Dil. on Mun. Corp. § 10, pp. 761, 762, 785, 786. In Pennsylvania the duty of road repair is statutory: Sect. 6, Act June 13th 1836; Rapho v. Moore, 18 P. F. Smith 404. Hence a liability for non-repair is recognised here : Dean v. Milford Township, 5 W. & S. 545. But in original construction of roads and bridges the townships must be governed by their means. To. open a hill-side road with a double track, where it is necessary to blast rocks and dig down steep banks, often would require more taxes than the township can impose, and leave nothing for repairs. We must not forget, when looking at the question of ability, the right of the citizens to work out their taxes, a duty indolently performed often at the highest rate of wages: Miller v. Gorman, 2 Wright 309 ; Childs v. Brown Tp., 4 Id. 332. I have made a calculation of the average taxes per mile of six of the most rural townships of my own county, which had in 1870 one-third more population than Greene county, and about one-fourth less territory, and find it would not exceed twenty dollars per mile of all the roads therein. In the present case $70 were expended on the road in question within less than one-quarter of a mile, and yet effecting but a small improvement.
What are the features of this road ? It is described by many witnesses as running through a long narrows, a high hill on one side, and a precipitous creek bank on the other. Its width was eight to twelve feet, in some places cut out of the solid rock. Its bed, chiefly of stone, was good, bounded by a high wall to hold up the creek side — proper to ride upon, but not to pass, and, therefore, turnouts or passing places were made at short intervals. To widen-the road at its narrowest point, to ten feet, required a cut in the hill-side twenty feet high, thus exhibiting the steepness of the hill, rising two feet in height to one in width' of excavation. These features display the character of the narrows, and the impossibility of making a double track at any feasible expense. Having, in travelling the Seventeenth Judicial District, seen such narrow roads, I readily recognise the diflieulty of making roads in such places, and where the topography of the country often forbids [418] another passage. To say that a township is liable for the folly of one attempting to pass in such narrows, instead of stopping at a turnout, because it has not cut out a double-track road on one cent in the dollar of valuation, is sheer injustice.
The first and second assignments of error show how this case was tried in the court below. The defendant offered to prove that the road, at the place of the accident, could not have been made wide enough to admit of teams passing each other with ease and safety ; and that it could not have been protected on the side next the creek by the erection of a wall or otherwise without incurring an enormous expense, such as the township could not bear; this offered, in connection with the evidence already in, showing there were convenient places of passing, for the purpose of showing that the defendant was not guilty of negligence. This was objected to as irrelevant, and if proved, not a defence, and the objections were sustained by the court. The second point of the defendant raised the same question. It reads thus: “If the jury find that the road for the space of about seventy yards, embracing the place of the accident, by reason of the rocks on one side, and the creek on the other, could not have been widened or made secure on the creek side by a wall or otherwise, so as to admit of teams passing each other with ease and safety, without a vast amount of labor; that within short distances from the place where the accident occurred there were places in the road where teams could pass each other with ease and safety, and to which teams meeting at the place of accident could be backed without difficulty or risk; that the road in all respects, save width and protection on the creek side, was in good condition; and that the township was in no default in not securing a change of location, then there was no negligence on the part of the defendant, and the plaintiff cannot recover.” This point was refused. These assignments of error show that the court wholly ignored the question of original construction, treating it as out of the case, or else considering the township as bound to construct a double-track road under all circumstances. Hence we are prepared for the refusal of the defendant’s third point, and affirmance of the plaintiff’s second point, in which the court hold substantially that the township was primarily liable for damages and John was not guilty of contributory negligence in attempting to pass when, where, and as he did. But let Mr. John tell his own story. He met a boy in a one-horse buck wagon. He says: “The boy drove to the upper side of the road, as close as he could get and stopped. I drove up to the side of his wagon — told my wife to step out on the tail end of his wagon and then up the bank; she did so; I threw her the check lines; she said she could not drive; I told her to take one line in each hand, and I would tell her which line to draw; at that time I was at the end of the wagon, on the road; I took the horse of the boy [419] by tbe bridle to see if I could not make it get up on tbe bank; it put one foot up, and then came back into the road; I told the boy to take his horse by the bridle and hold it, and I thought we could pass; I told my wife to move the horses slow, and if the wagon was about to slide over I would hold it; I spoke to my horses; they started; they moved forward until my hind hub caught his fore tire; I spoke to the horses and they stopped; I moved the wagon over about two inches, just so it would pass; I again spoke to the horses, and my hind hub was, just about passing his fore wheel when the mare slipped off into the creek. I left the wagon and ran around to the near horse to pull him square across the road to help the mare to rise again, but before I got to the bank the mare made a struggle and went over and dragged the near horse with her into the creek. The wagon turned upside down once, and the next time was in the water.”
A more foolish attempt to pass another on a narrows cannot well be conceived. The court ought to have received the evidence and submitted the question of fact to the jury whether the injuries arose from the fault of the township, in the condition of the road, or from the necessity, in the original construction, of making a single-track road at this place.
Judgment reversed and a venire facias de novo awarded.