Hey v. Philadelphia

Mr. Justice Gordon delivered the opinion of the court, The jury found that the city authorities were derelict in duty in not placing proper guards or barriers along the river side of this very-dangerous piece of road, and that this neglect was the proximate cause of the loss complained of by the plaintiff. The court on the other hand, regarded the fright and breaking away of the horse as the immediate cause of the disaster,'and hence entered judgment for the defendant, non obstante veredicto. Herein we think the court erred. It is true that ordinarily provision is not to be made against contingencies so rare as runaway horses. Roads and bridges ate constructed for the purpose of ordinary travel, and if- they fulfil such purposes they are sufficient, and those who have them in care are not chargeable with the results of extradrdinary accidents that may occur upon them. These things must, however, be governed by common reason and observation. 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 just for this reason that such a road — 50 — should be provided Avith guards Avhich, under ordinary circumstances, Avould not be essential. As..was said, per euriam, in the case of Lower Macungie Tsp. v. Merkhoffer, 21 P. F. Smith 276, “ a highway must he 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 notAvithstanding the fright of the horse, the accident might have been prevented. Newlin Tsp. v. Davis, 27 P. F. Smith 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 hut 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. Given secure side guards, and the driver is under no apprehension of immediate danger, Avbether his horse attempts to run or back; in either, case he retains his seat and the lines, and has a reasonable chance to save himself and his property — remove the guards, and he is at once surrounded by circumstances of extreme danger, calculated to appal an ordinary person, and it may, indeed, be the best thing he can do to abandon horse and carriage to their fate and endeavor, as best he may, to save his OAvn life. Here the circumstances created by the.neglect of the public authorities, are such as to render the accident not only possible but probable, and it is against such probabilities that they are hound to provide, and the want of such provision is negligence per se. There is, however, no reasoning which applies to a bridge that does not also apply to a road, for a bridge is but part of a road. If the road is so dangerous, by reason of its proximity to a precipice, or any other cause, that common prudence requires extra precaution, in order to insure the safety of the travelling public, why shall not the authorities be bound to such precaution. Now that Hey was surrounded by circumstances calculated to excite alarm in the mind of an ordinary person, no one can Avell deny ; that the unfenced precipice was a dangerous element, Avhich Avould naturally beget such alarm, will no doubt also be conceded, and that he did nothing that a man of prudence ought not to have done the jury have found. Where then was the fault ? Was it not to be found in this unguarded declivity ? But it is said the running away of the horse was the proximate cause of the injury, and had it not gone over-the bank it might have gone farther with the same result in the end. This, however, does not follow, nor is it necessarily to be conceded, for ordinarily a dead horse does not result from a runavvay, and, hence, had there been proper guards at this place, the chances are ten to one the horse, at least, would have been saved. Granting, however, that the runaway was the imme — 51 — diate cause of the whole disaster, still the question remains, what produced the runaway ? In Pittsburg v. Grier, 10 Harris 54, the immediate cause of the sinking of the steamer, was the striking of some heavy body floating in the stream, nevertheless as the causa causans was some piles of pig metal, negligently permitted to lie on the public wharf, thus obliging the boat to occupy a position more dangerous than it otherwise would have occupied, the city was held liable. A like case is that of Scott v. Hunter, 10 Wright 194, in which Pittsburgh v. Grier is approved. Thus we see that the immediate cause of the damage, may be but the effect of a precedent cause, and if the latter arises from a neglect of duty chargeable upon a municipality, such municipality is liable therefor. As therefore, the jury, in view of all the circumstances of this case, might legitimately find that the losing of the control of his horse by Hey, resulted from the alarming character of the unfenced precipice, inducing him to jump from his carriage in order to save himself and his children from the threatened danger, we conclude that for this reason, if for none other, the verdict should have been permitted to stand. We do not regard the cases to which we have been referred by the counsel for the defendant in error as in point. In all of them the immediate cause of the accidents complained of was the running away, or loss of control of the horses, occasioned by accidents unconnected with the condition of the roads over which they were passing. As in the case of Davis v. Dudley, 4 Allen 557, where the bolt, connecting the cross-bar and thills with the sleigh, broke and let them fall on the horse’s heels, thus frightening it and causing it to run. away, and during its flight it broke one of its legs upon a pile of wood lying in the road — it was held that the town was not liable. But if we reverse the case and suppose the fright of the horse to have been occasioned by some prudent endeavor of the driver to escape the danger of an obstruction in the highway, it is probable the decision would have been different. It is, however, only under the latter statement of the case that it becomes similar to that under consideration; hence it and its kindred cases have no applicability to the discussion in hand. The judgment of the District Court is now reversed, and a judgment for the plaintiff below is entered on the verdict, and the record is directed to be remitted to the court now having jurisdiction of the records of said District Court for execution. Chief Justice Agnew and Mr. Justice Paxson, dissented.