Mostoller v. Somerset Township

Opinion by Hendeeson, J., The plaintiff’s action was brought to recover damages for injury to his farm caused by a fire alleged to have been communicated from a traction roller owned by the defendant township and in use on a public highway near the plaintiff’s land. The fire was ignited at the roadside on land adjoining the plaintiff’s and was communicated by a continuous burning to the latter’s premises. The roller was propelled along the highway in the forenoon of the day when the fire occurred and was in charge of an engineer and fireman employed by the supervisors of the township. Repairs on one of the public roads were in progress and the roller was used in connection with that work. It is contended by the appellant that the judgment ought not to be sustained because: (1) There is not sufficient evidence to support the allegation that the fire was communicated from the machine; (2) the [405] plaintiff was chargeable with contributory negligence; (3) a township being a quasi municipal corporation only is not responsible for the negligence of its agents. The evidence shows that the roller was used without a spark arrester; that coal was used for fuel; that it was propelled along the highway on an ascending grade and that in one place a spark thrown out ignited combustible material along the road. This fire was extinguished by one of the employees operating the machine. No direct evidence was offered that the fire which destroyed the plaintiff’s property was ignited by a spark from the roller but the day was dry, a high wind prevailed there was much combustible material on the land adjoining the road, there was little travel on the highway that forenoon and no other cause for the fire was shown. Numerous cases have been sustained where the fire was accounted for on circumstantial evidence, in some of which the proof was not more persuasive than that presented by the plaintiff: Elder Twp. School Dist. v. Penna. R. R. Co., 26 Pa. Superior Ct. 112; Derminer v. N. Y. Cent. & H. River R. R. Co., 42 Pa. Superior Ct. 538. There is no substantial ground for doubt under the evidence that the fire which destroyed the plaintiff’s property originated at the roadside on the Reading Iron Company’s land and burned continuously across that property to and over part of the plaintiff’s premises and the association of circumstances gives support to the plaintiff’s allegation that the road machine was the cause of his damage. The evidence shows that the machine had a spark arrester when it was bought but it had been removed in some way not disclosed by the testimony. There was some evidence that a spark arrester should be used on such a machine. We are unable to say under all the circumstances that the plaintiff’s case fails for lack of evidence. The court refused to submit to the jury the question of the contributory negligence of the plaintiff and in this there was no error. After a careful examination of the [406] evidence we fail to discover any fact from which, a jury could be justified in concluding that the plaintiff had done what a man of ordinary care and prudence should not have done under similar circumstances. He was driving his team on his way home when he observed the fire on the Reading Iron Company land and discovered that his property was threatened by the fire. He proceeded Immediately to do what he could to prevent the fire from spreading to some buildings which were located at his coal mine and members of his family summoned neighbors to come to his assistance. Nothing in the case supports the assumption that he could have extinguished the fire before it came onto his land. The learned counsel for the appellant states the main question to be whether a quasi municipal corporation governed under the Act of 1913 is liable for the torts, negligence, malfeasance and misfeasance of its officers, employees and agents. We do not deem it necessary to enter into an examination of the many cases discussing the responsibility and exemption from responsibility of counties and townships in the varying states of fact out óf which the cases arose. A township, it is true, has not general corporate capacity but it has certain responsibilities and obligations with respect to which it is competent to contract and act. .And within the circumference of these obligations it is liable for the conduct of its officer^ and employees. The construction and maintenance of township highways is a charge on such municipal districts. The supervisors are required to exercise authority on that subject. They are authorized by the Act of 1913, P. L. 915, to purchase material, machinery, tools and implements necessary for making and repairing roads and bridges and to properly care for them. Having purchased this machine and applied it to township uses in the discharge of a township obligation the negligence of its employees creates a.responsibility on the part of the township. The principle here involved is decided in Kriebel v. Worcester Twp., 253 [407] Pa. 452, where it was said that a township is liable for the negligence of its agents and employees in the same manner as individuals and other municipalities. That case was one of a fire communicated to the plaintiff’s buildings by a road roller used on the public highway and on that state of facts the court said, “The township supervisors as well as their agents were bound to know and guard against the ordinary, dangers incident to the use of a machine of this nature.” A high wind-was blowing, there had been no rainfall for a considerable time and the responsibility of the township was considered in the light of these pertinent circumstances. Like reasoning applied to the facts of the case before us supports the action of the learned judge of the court below in refusing to give binding instructions for the defendant. The assignments are overruled and the judgment affirmed.