Potter v. Natural Gas Co.

Opinion by Mb. Justice Dean, On November 1,1895, in the evening, the plaintiff, a school teacher, in East Finley township, Washington county, was driving home from Ills school in a one-horse, two-wheeled Canton cart; in going along the highway, the right cart wheel struck and scraped a two inch iron pipe at the side of the road, the mare be was driving took fright, jumped to one side and kicked over the front of the cart; plaintiff was thrown backward out of the cart, and tlie mare ran away. He was seriously injured, his kneepan being broken into three pieces. The pipe was part of a feed line laid by defendant from a gas well in the township to its main, about a mile distant. At the point on the public road where the accident happened, a cut through a ridge at right angles to the road had been made for the roadbed, which last at tlie surface or wagon track was eight feet six inches wide; the gauge of plaintiff’s cart wheel was five feet two inches. The defendant bad laid its pipe on tlie bank above the cut, close to a post and rail fence, witbin about two feet horizontally from the track on the highway, but tbe height of the bank — 588 — above it; either from the effect of changes of the weather on iron, or by physical force, the pipe at this point had been moved from its original position, and was thrown in a curve, out from the fence and down into the cut, so as to be over on the wagon track about a foot. It was shown that this had been the situation of the pipe, for at least some -weeks, and perhaps months before the accident. Plaintiff, alleging his injury was caused by defendant’s negligence in permitting the pipe to remain on the highway, brought suit for damages. At the trial in the court below, the statute^ right to lay the pipe along the fence at the side of the highway was conceded; plaintiff averred however, that it was defendant’s duty to keep it there and, having wholly failed in this duty, it was negligent. There was some conflict in the evidence as to the exact location of the pipe in the highway when the cart struck it. As plaintiff admitted that he had traveled the road almost daily, it was urged by defendant, he was either negligent in driving, on to him, a known obstructed road, or else negligent in not exercising care to avoid the obstruction by keeping further from it. The court submitted to the jury, four questions: 1. Did the evidence show the company negligently permitted the pipe to remain displaced, so as to endanger travel on the highway? 2. Was this negligence the proximate cause of plaintiff’s injury (the broken kneepan), or was it the not reasonably to be foreseen action of a vicious, easily frightened animal ? 3. Was the accident in any degree attributable to plaintiff’s negligence ? If these three questions were answered in plaintiff’s favor, then,. 4. What damage did he sustain ? The verdict was for plaintiff in the sum of $1,178.75, and we have this appeal by defendant. Eighteen errors are assigned. The seventh to thirteenth inclusive allege error in not directing a verdict for defendant, and in submitting to the jury the evidence as to whether the alleged negligence, if proved, was the proximate cause of the injury. A careful perusal of the testimony satisfies us that the case was one for the jury, as the learned trial judge put it. In no view of the evidence would he have been warranted in peremptorily directing a verdict fox-defendant. Just what were the facts teixding to show negligence by defendant were xxot beyond controversy, and, if established, the inferexices that defendant claimed should be drawn — 589 — from them did not necessarily follow. Did the noise occasioned by the scraping contact of the iron tire cause the fright? Was this fright the natural and probable result of such a circumstance, or was it one incapable of ordinary foresight ? Was the kick of the mare the last in the rapid succession of events, part of a natural whole, so linked together that the kick was not an independent intervening cause ? Was the animal an exceptional one in habits and, therefore, one the defendant was not hound by ordinary care to prepare for? These and other inferences were all for the jury. If the pipe with knowledge of defendant had been in the middle of the road, and a stranger bad in the dark driven over it, wrecked his vehicle and sustained personal injury, there would have been hut one reasonable inference; negligence on part of defendant; if the displacement of the pipe, unknown to defendant, had been caused by an extraordinary storm, or by malice, immediately before tbe accident, there could have been but one reasonable inference; no negligence on part of defendant. But under the peculiar and disputed circumstances here testified to, it was certainly a case, both on the facts and inferences from them, for the jury; and all our cases from Hoag v. R. Co., 85 Pa. 293, down to Wilson v. R. Co., 177 Pa. 512, invariably so decide. Just how the plaintiff’s knee was injured was for the jury; hut assuming it to be tbe fact, as is highly probable, that it was from an immediate kick by tbe frightened animal, then, taking into view the usual character and habit of the horse when affrighted, was that a natural or probable result from the negligently misplaced pipe? The question is not whether defendant ought to have foreseen the kick, hut could it have reasonably foreseen the fright? That the animal will then commit some unforeseeable act, dangerous to the driver or to those within reach of him, is almost as certain as that he will mend his pace at a stroke of the whip. As is said in Railroad Co. v. Hope, 80 Pa. 373: “ The practical knowledge and common sense of the jury applied to the evidence steps in to determine whether the injury is the real proximate result of the negligence, or, by reason of intervening or independent causes, must he regarded as too remote, and the result not within the probable foresight of the party, whose negligence is alleged to have produced it.” All the points raised by these seven assignments of error, touch the — 590 — same question. The instruction was ciear, and is sustained by all our cases; therefore they are overruled. , The fourteenth to eighteenth assignments, inclusive, complain of error in the instruction as to contributory negligence. Counsel for defendant in his fourth written point in effect, asked the court to charge peremptorily, that plaintiff was guilty of contributory negligence, and therefore could not recover. This request was based on the assumption that plaintiff knew the pipe line was there and that by ordinary care he could have avoided striking it. The plaintiff did know it was there; whether from that fact ordinary care dictated he should walk to his home from the schoolhouse or drive miles around on some other road to reach it, in view of the nature of the obstruction, were questions for the jury; and whether taking his usual and direct road home by his usual method of travel, he could have avoided the pipe by ordinarily careful driving, was also for the jury. One who deliberately chooses an obviously dangerous way which by a little inconvenience he may avoid is held to be guilty of contributory negligence. But the nature of this peril and whether it could reasonably have been avoided, and whether care in driving was exercised, were all questions for the jury. Except in his refusal to peremptorily instruct for defendant the learned judge gave to the jury in substance exactly the charge asked for by defendant in its written points; the ninth and tenth prayers were affirmed in the language. presented, the court at the same time very properly calling attention, however, to the undoubted law that plaintiff was bound only to exercise ordinary care. The instruction as to what constituted negligence on part of defendant, the distinction between remote and proximate cause, and also what would constitute contributory negligence on part of plaintiff was unexceptionable. The first, second, third, fifth and sixth assignments are to the rulings of the court on offers of evidence by plaintiff. As to the first assignment: against objection by defendant the court permitted a witness, W. B. Smith, to testify as showing the nature of the obstruction that his horse a few weeks before the accident to plaintiff had taken fright at the noise made by a scraping wheel on this pipe, and that his horse was a very quiet one. It was a'relevant inquiry, as to whether the pipe in the position it occupied on the road, as averred by plaintiff, was — 591 — dangerous to travelers by horse and vehicle. Those who traveled the road were qualified to testify from actual observation. It might not have excited fear in an ordinarily gentle animal; if it had that effect on such an animal, it was part of plaintiff’s case to prove it. If his animal was an exceptionally timid one, easily frightened by sounds which did not disturb the ordinary horse, the defendant was not bound to foresee the danger and guard against it. In this view, the evidence was admissible. As to the second assignment the court permitted a witness, R. B. Plants, to testify, against defendant’s objection, that the pipe had been displaced, and was seen by him in the roadbed soon after it was laid; that he had passed there about once a week until after the September immediately preceding the accident in November, and it was still on the road. This was clearly evidence for two purposes: first, that the jury might infer in view of the other evidence, if out of place for a long time and until two or three weeks before the accident, that no change had taken place when that occurred; and second, that if observable by the ordinary highway traveler for this length of time, defendant must have known it. There was no error in admitting this testimony. The testimony of Clark Post, which is the subject of the third assignment, was to the same effect, and for the same reasons was properly admitted. The fifth assignment is to permitting plaintiff to testify that up to the time of his injury he had no knowledge of any other person coming into collision with the pipo. The purpose evidently was to meet the charge of contributory negligence. If the place where the accident occurred was very dangerous, and known to be so by plaintiff, it tended to support this charge; if he was ignorant of its peculiarly dangerous character that fact, at least in some slight degree, tended to weaken the charge. While his testimony in this particular was of slight weight, it nevertheless was for the jury, and was properly admitted. The sixth assignment is to the admission of the testimony in rebuttal of Jennie McNay, against defendant’s objection. It appeared from the evidence that plaintiff had purchased the mare from witness’s father; defendant had offered evidence tending to sIioav the mare was an unbroken, vicious animal, and that the owner who had reared her had not used her. The plaintiff attempted to show by the witness the reason the mare was not — 592 — used was because her father had sixteen or seventeen other horses, and had not work for all. This was competent evidence in rebuttal, and it was right to admit it. The fourth assignment is to a part of the general charge. The court in substance stated to the jury that the plaintiff was admittedly injured by the frantic kick of his mare; that the burden was on him to show this act was caused by the negligence of the company; to successfully bear this burden he had offered evidence tending to show that the natural and probable result of leaving the pipe in the road was to frighten horses, because a vehicle would probably strike it; immediately preceding this statement the court had plainly instructed the jury that the testimony tending to show other vehicles had struck the pipe and the horses had in consequence taken fright in no way tended to prove plaintiff’s vehicle had collided with the pipe, and he had in consequence been injured, but that the evidence was admitted only for the purpose of showing that the situation of the pipe was such that if an iron tire scraped it with force the sound was sufficient to terrify the ordinary horse. Aj>pellant’s counsel argues from a half paragraph picked out from the charge, not accompanied by the preliminary caution of the judge, that the effect was to permit the jury to find the essential fact that defendant’s negligence resulted in plaintiff’s injury, from evidence not offered and not admissible for that purpose. But taking all the court said on that subject there is no reason to assume the jury was influenced in finding the main-fact from evidence admitted to prove another. Therefore the fourth assignment of error is overruled. The case was well and ably tried on both sides by counsel in the court below. The charge of the court was full, clear, impartial, and without even technical error; the verdict in view of the finding of fact is certainly not excessive. Therefore the judgment is affirmed.