Smith v. Jackson Township

Opinion by Rice, P. J., On Sunday September, 16, 1900, the plaintiff on his return from a creamery was crossing a bridge which forms part of the public highway in the defendant township. His horse stepped through a hole in the bridge, and he was thrown front his wagon and off the bridge, sustaining injuries. The hole had been in the bridge for about three weeks before the accident, and the plaintiff had observed it; but on the day preceding his injury, it is alleged, a board ten inches wide and about five feet long had been nailed over the hole, a repair that he had noticed when first crossing the bridge on September 16 on his way to the creamery. It is alleged that the board was knocked off in some way and the hole uncovered before his return, which was an hour or two later. The number of milk cans in his wagon prevented the use of a seat and he was riding on one of the cans. In the defendant’s seventh point the court was requested to charge as follows: “If the jury believe from the evidence that the plaintiff had driven over the Wheeler bridge twice a day for three weeks next prior to and including the day of the alleged injury, and knew or ought to have known of the hole therein and its dangerous character, and that there was at the time of the alleged injury a sufficient and safe space in the roadway of said bridge beyond said hole, over which the plaintiff had formerly safely driven, and at the time of the accident could by the exercise of ordinary care and prudence have safely driven and avoided said hole and the injury complained of, then the plaintiff cannot recover.” The refusal to unqualifiedly affirm this point is the subject of the first assignment of error. The second and third assignments raise the same question; therefore, the three assignments will be considered together. We see no good reason why the point should not have been emphatically and unequivocally affirmed. The suggestion of the-plaintiff’s counsel that the point assumed that at the time [342] of the accident the. plaintiff had knowledge of an existing hole in the bridge is not warranted. That, as well as all the other questions of fact referred to, were, by the point, to be determined by the jury, and, surely, if the plaintiff knew, or by the exercise of ordinary care ought to have known, of the existence of the hole and its dangerous character, it was his plain duty to avoid it, as he had done when daily crossing the bridge during the three weeks preceding. The refusal of the point cannot be sustained upon the ground suggested by his counsel. The learned trial judge, while conceding the correctness of the point as an abstract proposition of law, held, and so instructed the jury, that it was for them to determine how far the plaintiff was relieved from the duty of looking for and avoiding the hole in crossing the bridge at the time of the accident by reason of the fact that when crossing on his way to the creamery he had noticed that a board had been nailed over the hole. This thought was expressed in the answers to the defendant’s seventh and eleventh points and more fully in the instructions complained of in the third assignment of error. He said: “ Whether the board covered the hole when the plaintiff first passed over the bridge on the morning of September 16, and, as we have just said, did that relieve him from the duty to look at the bridge as he crossed it and keep out of the hole — the same hole that he had seen every day for several days ? To what extent, if any, is he relieved by reason of the board being over the hole in the morning? This is one of the material questions in this case and it is wholly submitted to you for your determination. If there had been no board over the hole'in the morning and the plaintiff had without looking and without .forgetting, carelessly have driven into the hole, you might well find his carelessness contributed to the injury and find for the defendant; but, the question is, to what extent, if any, was the plaintiff relieved by the condition of the hole in the bridge as he found it on Sunday morning as he first passed over the bridge where the defect was in existence. ... You are to determine to what extent he is relieved, if any, from looking after that when he came back and that is one of the reasons why we refuse to take this case from the jury, because we thought this question was for you wholly.” In determining as to the correctness of these instructions, and others to the same effect [343] given in answer to the points, it is to be borne in mind, that there was abundant testimony going to show that the plaintiff was not looking ahead when he drove upon the bridge and when his horse stepped into this hole. Several witnesses testified to admissions made by the plaintiff to this effect. One of them testified that he described the accident to him as follows: “I saw a woman acting strange or peculiar as I approached the bridge, it drew my attention; she was in the bushes by the roadside; I watched her as the horse moved along, and turned on the milk can and kept turning around till I was riding sideways or nearly backwards, and all at once there was a jerk' and I went over and struck on the log and from the log down on the bank of the stream; I cannot tell whether the horse was walking or trotting; I know I was watching that woman and riding backwards and there came a jerk and I went over; I don’t know how it happened.” Whether or not the accident happened in that way was a question for the jury, but if it did happen in that way, that is to say, if the plaintiff was giving no attention to the place where he was driving, he was negligent and it was the duty of the court to instruct the jury that such inattention is negligence per se. The law upon this subject is well settled. “That the reasonable care which the law exacts of all persons in whatever they do involving risk of injury, requires travelers, even on the footways of public streets to look where they are going, is a proposition so plain that it has not often called for formal adjudication. But it has been expressed or manifestly implied in enough of our own cases to constitute authority for those who need it: ” Robb v. Connellsville Borough, 137 Pa. 42. This statement of the law has been applied or distinctly recognized in many later cases, among st AA’hioh may be mentioned: Haven v. Pittsburg & Allegheny Bridge. Co., 151 Pa. 620; Harris v. Commercial Ice Co., 153 Pa. 278; Stackhouse v. Vendig & Co., 166 Pa. 582; Lumis v. Philadelphia Traction Company, 181 Pa. 268; Shallcross v. Philadelphia, 187 Pa. 143; Hentz v. Somerset Boro., 2 Pa. Superior Ct. 225; Rick v. Wilkes-Barre, 9 Pa. Superior Ct. 402. The rule is as applicable to the driver of a vehicle as to pedestrians. In the recent case of Graham v. Philadelphia, 19 Pa. Superior Ct. 292, we said that while it is impossible to lay it down as an inflexible and unvarying rule of law that he must [344] keep his eyes constantly fixed on the roadbed and is affected with notice of every defect therein which can be detected by doing so, “ he must, however, keep his eyes open and his wits about him and must look where he is driving. The omission of this plain duty is negligence and bars recovery for the injury to which it contributed.” It follows that the fact that the plaintiff had noticed when crossing the bridge in the morning that a board had been nailed over the hole, did not relieve him from the duty to look where he was driving and it' was error to permit the jury to find that it relieved him from that duty. The first three assignments are sustained. We cannot say that there would have been error in refusing the defendant’s ninth and tenth points, which are the subjects of the fourth and fifth assignments. To have affirmed the points without qualification would have required the court to say substantially, that it was negligence per se for the plaintiff to ride seated on the top of one of his milk cans. The court could not have declared that that was negligence under the circumstances without usurping the functions of the jury. But the fact that the plaintiff was compelled to ride in a position where in case of accident he would be easily thrown to the ground and injured was an additional reason for greater vigilance in looking where he was driving. Hence, it was error in answering the points to submit to the jury the question whether his riding backwards at the time he received the injury complained of was a negligent act. The jury should have been instructed that if he was riding in that way he was negligent and could not recover. This is all that need be said concerning these assignments. We are not convinced that the court erred in refusing to charge that under all the evidence the verdict of the jury mus.t be for the defendant; therefore the sixth assignment of error is overruled. Judgment reversed and venire facias de novo awarded.