Pittsburgh, Chartiers, & Youghiogheny R. Co. v. Moses

Opinion by Mb. Justice Gbeen: It seems to us the learned court below defined with great care and perfect accuracy the limitations of the defendant’s liability. The company had constructed a new road to take the place of an old one in use for many years. It was mooted whether the old road was a public or a private road, and that question was left to the jury with proper instructions, and of this there is no complaint. The jury found that the road was a public road, used by prescription for more than twenty-one years, and there was sufficient evidence to sustain this finding. That the defendant had occupied a portion of it and made a cut through it some 12 feet in depth was undisputed. That a new road was substituted for the old one or, at least, a part of it, and was finished about six weeks before the accident was also fully proved and may be regarded as an established fact. The question whether the plaintiff was guilty of contributory negligence was also very carefully submitted to the jury with proper explanations, and was found in favor of the plaintiff. There was sufficient testimony to sustain this finding, if believed by the jury, and the question of credibility was, of course, exclusively for them. But one question remained, and that was whether the defendant was guilty of negligence in not properly guarding the cut across the old road. The learned judge charged the jury that, if the defendant made a new road, it was its duty to erect proper barriers to protect persons from falling into the cut, and to maintain them for a reasonable time after the new road was finished. The court did not assume to say that the duty of maintaining the barriers remained with the defendant continuously or in [323] definitely, but only for a reasonable time after the new road was finished. It seems to us this is a correct statement of the law applicable to such a case. Certainly, in the first instance, this duty rested upon the company. -When the cut across the old road was made, and the new road was being constructed, it was the undoubted duty of the defendant to erect and maintain the proper guards. The jurisdiction of the supervisors would not attach at any time earlier than the completion of the new road and notice to them to that effect. In view of the fact that it is a public road that has been changed, and that very many' persons who do not necessarily know of the change may have occasion to pass that way, it is proper that the duty of maintaining the barriers to protect travelers from falling into the cut should rest upon the persons who have made the cut, for a reasonable time after the completion of the substituted road. Nor can we say that a period of six weeks is an unreasonable time for the continuance of that duty. It was a very simple matter to erect such barriers as would be an ample protection to travelers while the change was being made, and the duty of subsequent protection would be discharged by the mere continuance of such barriers. Some time must necessarily elapse before the general public would become acquainted with the change, and it would be perfectly natural for a traveler, knowing the course of the old road and not knowing of the new one, to take the old road at the point where the new one diverged unless the passage of the old one was blocked by suitable obstructions. In such circumstances the ordinary authorities, to the effect that a man is not bound to protect excavations on his own land from accidents to trespassers, are not applicable. The case of Aston Twp. v. McClure, 102 Pa. 322, is not in point. There only a part of the width of the old road was occupied for the railroad, and the supervisors permitted the remaining part, reduced to a very narrow road, to be used by the public without protecting the precipitous side by a railing or other safeguard. This Avas negligence in the township. Here a new Toad was substituted and the old one no longer used, and it may be questioned whether the duty of shutting off access to the old road at the point of divergence does not permanently reside with the de [324] fendant, since the old road no longer comes within the jurisdiction of the supervisors. Certainly that duty continued long enough to enable the traveling public to become acquainted with the change. In Wharton on Negligence, § 819, it is said: “When a railroad company is authorized by its charter to divert the location of a highway, when this is necessary in the construction of its road, the right must be exercised with due regard to the public safety; and the company will be liable for injuries sustained by travelers on the highway by reason of its negligence in not erecting proper barriers to guard them, where such travelers are not in fault themselves.” In Potter v. Bunnell, 20 Ohio St. 150, it is said: “In regard to the exercise of admitted rights . . . the rule is briefly stated in Veazie v. Penobscot R. Co. 49 Me. 119, viz.: ‘The right to make the cut did not give the right to do it without due regard to the public safety, and that required that all proper guards should- be erected and continued whenever there was danger of injury to any person by reason of the cut.’ ” See also Oliver v. North Eastern R. Co. L. R. 9 Q. B. 409; Atlanta & R. Air Line R. Co. v. Wood, 48 Ga. 565. The assignments of error are all dismissed. Judgment affirmed.