Riedenauer v. McMahon

87 A. 572, 240 Pa. 179, 1913 Pa. LEXIS 648

• Court: Supreme Court of Pennsylvania
• Decided: March 31, 1913
• Docket: Appeal, No. 255
• Status: Published

Opinion

Opinion by

Mr. Justice Potter,

This is an appeal from the refusal of the court below to take off a judgment of compulsory nonsuit. The defendant was cñargéd with negligence in leaving loose bricks in a roadway which it is alleged caused a coach • upon which the plaintiffs were riding, to be upset'; It appears from the evidence that at the time of the accident the plaintiffs were passengers riding upon the top of a brake drawn by a team of four horses along the Wissahickon Drive, in Fairmount Park. The defendant was a contractor engaged in building a sewer. At the point in question the roadway was about thirty feet in width. The trench in which the sewer was being constructed was on the right hand side of the road, and was about five feet in width. Excavated material was thrown out at the side of the ditch taking up four or five feet more. On the other side of the road some bricks were piled up, and between the pile of bricks and the trench a few loose bricks'were lying in the roadway. It seems that when the coach reached the place in question it ran over a loóse brick which caused one wheel and the pole of the vehicle to. swerve somewhat, and when the leading horses straightened out the pole of the vehicle broke, and the coach being uncontrolled ran upon the pile of loose bricks and upset. The only reasonable inference to be‘drawn from the evidence is that the accident wás due to the breaking of the pole. Manifestly if it had been in sound condition the slight swerve caused by the wheel, striking a loose brick would not have broken the pole. • As the trial judge said in entering .the nonsuit the work upon the sewer was in active progress. There was no evidence to show how long the brick had been lying in' the roadway. It may have fallen there immediately . before the approach of the coach upon which the plaintiffs were riding. At most it would constitute but a slight impediment to the passage of-a’vehicle. At any rate, our examination of the evidence leads us to agree with the conclusion of the couirt below that negligence on the part of defendant could not fairly be inferred from the fact that in the progress of the construction work one or more loose bricks were permitted to be in the roadway for a short time before a four-horse team approached the work. We do not find that anything more than this was shown.

The assignments of error are overruled, and the judgment is affirmed.