Otto Township v. Wolf

Mr. Justice Paxson delivered the opinion of the court, This was an action on the case against the township of Otto to recover damages for injuries sustained by the plaintiff, and caused, as was alleged, by the negligence of the defendant. From the admitted facts of the case it appears that on the evening of January 5, 1880, the plaintiff was walking along one of the public roads of said township, carrying a lighted lantern, and when in the vicinity of certain oil wells an explosion of gas occurred, by means of which the plaintiff was severely injured. At the place where the accident occurred a pipe, one or two inches in diameter, had been laid across the highway by one Patterson to convoy gas from his oil well on one side of the road to a well he was drilling on the other side. [610] This pipe had been in place about six weeks; in the centre, or travelled part of the road, it had been buried about one foot, but where it crossed the gutter, on either side of the road, it was exposed, and rested upon the bottom of the gutter. On the evening in question, about an hour before the accident occurred, a team had passed along at this point, and for some reason had deviated from the travelled portion, the wheels had come in contact with the exposed portion of the pipe in the gutter, causing a break thereof, and the escape of the gas. There was no evidence that the township authorities knew that the pipe had been laid across the road; the plaintiff lived about a quarter of a mile from the place of the accident; had passed along the road frequently and had not noticed the pipe. Under these circumstances the defendant by his first point asked the court to instruct the jury: “That there is no evidence of negligence on the part of the defendant; ” and bj^ the third point: “That there is no evidence of actual or constructive notice to the supervisors of the defendant of the dangerous condition of the road at the point where the accident occurred.” The learned judge not only refused the instructions prayed for, but gave the jury a-binding direction to find for the plaintiff. This was withdrawing the entire case from the jury, and could only be sustained by assuming that the township was an insurer against all defects or obstructions, latent as well as patent, in the public highways, and even where the defect or obstruction is the work of a wrong-doer or trespasser. This would be a severe rule to apply, and is not justified by the .authorities. In Rapho & West Hempfield Townships v. Moore, 18 P. F. S. 404, it was held that “ A municipality is not an insurer against all defects, latent as well as patent, in its structures on highways, but is liable for negligence. Where the defect in a lawful structure is latent, or is the work of a wrong-doer, either express notice of it must’ be brought home to the corporation, or the defect must be so notorious as to be evidence to all passers, when the corporation is charged with constructive notice.” This principle is applicable to the case in hand. Mr. Patterson may not have been a wrong-doer in taking his pipe across the road, if done in a careful manner, but it was not the act of the township, and was done without its knowledge. Hence the township is not liable, until knowledge of the act complained of is brought to the attention of the supervisors, unless the defect be so open and notorious as to be evident to all passers by. Even in the latter case, a reasonable time, depending upon the character and location of the obstruction, must elapse before the township can be held to constructive notice. [611] And tins is a question for the jury: Fritsch v. City of Allegheny, 10 Norris, 226. It would not do to apply the same rule to the supervisors of a large and sparsely settled township, where an obstruction had been placed upon a highway seldom travelled, that we would to the municipal authorities of a city or borough, where such an obstruction would be likely to be brought to their knowledge speedily. The learned judge thought that six or eight weeks was quite enough to “ give the public authorities an opportunity to know whether or not a powerful agent is being transported across the highway so insecurely as to endanger life or limb of passers by.” It has been held in some cases that much less time was sufficient to charge the municipal authorities with notice. Thus in Fritsch v. City of Allegheny supra, where a dead horse had been suffered to remain for twenty-four hours during the hot weather of August, upon one of the streets of the city, it was left to the jury to say, whether under the circumstances of the case the municipal authorities ought to have discovered and removed it within that time. But the facts of that case bear no analogy to this. Here we have a small iron pipe, not over two inches in diameter, buried out of sight under the travelled portion of the road, and exposed only for the short space necessary to cross the gutter. It was lying upon the bottom of the gutter, and the first rain might, and probably would, cover it with dirt, so as to be scarcely perceptible to the passer by. It was not so patent and notorious “ as to be evident to all passers.” That this is so is conclusively shown by the fact that the plaintiff, who lived within a quarter of a mile of it, and had passed over the road, did not know the pipe was there. If he did not know it, with what grace can he allege the township authorities ought to have known it, and charge them with constructive notice? If Mr. Patterson had thrown a dead horse in the highway, it would have been a thing which every passer by could not have failed to see, and it is reasonable that it would soon have been brought to the attention of the supervisors ; and if not, the care of the public ways, which it is their duty to exercise, would soon have discovered it. But here is a matter of which they had no knowledge; which had not been brought to their attention; which was not calculated to attract their notice; and we are asked to charge them with constructive notice by a plaintiff who had far better means of observation, who lived close by, had passed over the road, and did not see it. Whatever remedy the plaintiff may have against the person who placed the pipe there, he has no cause of action against the township. [612] We are of opinion that the defendant’s-first point should have been affirmed. Judgment reversed.