Cage v. Township of Franklin

Opinion by Porter, J., The first and second assignments of error are to the admission of certain evidence. The paper-book of the appellant does [94] not furnish a reference to the pages of the testimony, nor to the names of the witnesses. In addition, the appellee alleges that no such testimony as that assigned for error was offered, and that no exception was or could have been taken. An examination of the testimony apparently confirms this allegation. Furthermore, the assignments are defective in form. They need not be discussed. The tenth and eleventh assignments of error are based upon points of charge founded upon the cases of Chartiers Township v. Phillips, 122 Pa. 601, and Schaeffer v. Jackson Township, 160 Pa. 146. Those authorities have been modified in their effect by Yoders v. Amwell Township, 172 Pa. 447, 456, wherein they are practically said to be authorities only for the peculiar facts in each case. The points of charge were rightly refused. The last clause of the point contained in the tenth assignment required the court to say that, if the accident was caused by the backing of a balky horse concurring with a defect in the highway, the plaintiff could not recover, whereas in Yoders v. Amwell Township, 172 Pa. 447, 456, Bitting v. Maxatawny Township, 180 Pa. 357, and s. c. 177 Pa. 213, it was on precisely such facts that the plaintiff’s case was sent to the jury. The point contained in the eleventh assignment required the court to say that there could be no recovery against the defendant, if the accident would not have happened without the balking and backing of the horse. This would compel the court to hold as matter of law that the backing of the horse was the sole and proximate cause of the accident, whereas the negligence of the township in not erecting proper safeguards at the bridge indubitably contributed in part to the injury, and was a question to go to the jury. The same remark may be made respecting the thirteenth and fourteenth assignments. This case was evidently tried by the court below with the case of Yoders v. Amwell Township, 172 Pa. 447, 456, as a guide. The general charge contains a quotation of some length from the opinion of Mr. Justice Deae\ This opinion is a recent and exhaustive expression of the views of the Supreme Court on the. question of proximate cause, and is founded upon a case strikingly similar in its facts to the one at bar. Here, after the horse had been led across a bridge, and a distance beyond [95] it, he backed over .an unprotected wing wall of the bridge. There the horse was driven over a bridge, and a short distance beyond, when the driver stopped and went back to pick up a hat which had been dropped by one of the occupants of the carriage. While the driver was returning, the horse began to back, and finally went over an unprotected approach to the bridge despite the efforts of the driver. There, as here, the negligence of the township was claimed to be the failure to maintain guard rails on the bridge, and the question whether this negligence was the- proximate cause, was held to be one for the jury. No more adequate guide could have been at the disposal of the trial judge than the authority which he seems carefully to have followed. It were hopeless to attempt to add anything to the discussion of the cases contained in the opinión of Mr. Justice Dean on all the questions of law there and here raised. Proximate cause is always difficult of ascertainment. Each case is governed by its peculiar facts. Here we have as a precedent an opinion upon the law, based upon facts so similar to those now before us as to give it added weight in determining the merits of the present controversy. The twelfth assignment cannot be sustained, inasmuch as it is predicated on evidence which was not in the case, namely, that the plaintiff hired a ‘‘ balky ” horse. The evidence clearly showed that the horse had not such a propensity before the happening of the injuries here complained of. The case having been presented on the basis of a right on the part of the defendant to a directed verdict, the other assignments need not be discussed. The assignments of error are therefore dismissed and the judgment of the court below is affirmed. Rice, P. J., and Beaver, J., dissent.