Sutter v. Young Township

18 A. 610, 130 Pa. 72, 1889 Pa. LEXIS 1163

• Court: Supreme Court of Pennsylvania
• Decided: November 4, 1889
• Docket: No. 52
• Status: Published

Opinion

Opinion,

Me. Justice Mitchell :

Several of the plaintiff’s points, which were affirmed without qualification, stated the law rather heavily against the township; but the latter apparently relied on its own points for a corrective, and they were substantially affirmed, with the exception of the eighth. We may assume therefore that, on the whole, the jury were satisfactorily instructed, and we have to consider only the single assignment of error, that the court should have .affirmed the eighth point, and directed a verdict for the defendant.

This has required a careful examination of the whole evidence in the case, but we do not think it necessary to review it in detail. Assuming, as we must, where the judge is asked to decide the evidence insufficient as a matter of law, that the jury believed the witnesses for the plaintiff, they established the following facts in relation to the accident: The road was not opened of its full legal width of thirty-three feet at the point in question, but was about one, third that width, and cut into the hillside, so that on the left of the plaintiff, as he was driving, was a rising bank, and on his right a slope downwards to a fence, some five or six feet distant. The steepness of this slope was variously estimated by the witnesses, but none of them make the entire fall from the edge of the road to the fence more than three feet. Hugus, a witness for plaintiff, says it was two feet, and Henry Smith, another witness for plaintiff, puts it at fifteen to eighteen inches. Hackendorn, the surveyor, makes it considerably less even than that. It was not, therefore, inherently a place of peril, and did not at all come within the class of localities to which the principles of Plymouth Tp. v. Graver, 125 Pa. 24, apply. Had the point been separately made, we should have been obliged to hold that it was error to allow the jury to find that the mere absence of a guard-rail or log at such a point was negligence in the supervisors.

The grade of the road at the point of the accident was down hill to the front, and sloping somewhat, or “ sidling,” as the witnesses call it, to the right; and along or near the middle of the traveled portion was a rut, fixed by all the witnesses at twelve to fourteen inches in depth, cut into the road by the locking of the wheels in descending the hill. This rut extended a rod or so, along or near the middle of the road, but curving outwardly a little as it descended, so that at its lower end it approached the outside or sloping bank beyond the road itself. Its existence is the substantial negligence charged and proved in the case. All the witnesses concur that it was in such position that it could not well be straddled, and that the best and usual way was to go inside of it, so that the right runner of the sled in descending the hill should travel in it. This, of course, threw the left runner well up on the left side of the road towards the rising bank, and the road being highest there, and sidling anyhow, made the levels of the two runners so unequal that the plaintiff, hauling a load of lumber, had his sled overturned, and himself thrown down the bank, and injured by the lumber falling on him. The evidence leaves no doubt that such an accident might occur, and the jury found that it did occur without contributory negligence of the plaintiff. The rut was therefore a possible source of danger at all times, and a probable one in icy weather, as it was at the time of this accident. There was ample evidence of notice to the supervisors. Phillip Sutter testified that the rut had been there since the summer. Hugus saw it there for a month, and had called the attention of the supervisor to it before the accident. Under all the circumstances, as the jury were entitled to find them from the evidence, it would have been clear error for the judge to have taken the case away from them by directing the verdict for defendant.

Judgment affirmed.