Keeley v. Shanley , 140 Pa. 213 ( 1891 )

no. 48.

Opinion,

Mr. Chief Justice Paxson:

The third assignment alleges that the court below erred in refusing the eighteenth point of the defendants, which prayed for a binding instruction in their favor upon all the evidence. A discussion of this assignment necessarily involves the entire case.

The defendants were the contractors for building a turnpike road on Montgomery A venue, in Montgomery county, and were using in this work a large steam roller, weighing about twenty tons, which the terms of their contract required them to use in the construction of said road. The accident by which the plaintiffs were injured occurred on Sunday, the sixteenth of October, 1887, in broad daylight. The roller had been left the Saturday evening previous at the place where the accident occurred. It was on one side of the macadamized part of the road, leaving a clear space of about thirty feet between the machine and the south gutter line. It was covered with canvas, and the canvas was tied at the sides or corners. The place where it was left appears to have been the safest one where it could be placed when not in use. It could not be run off on the soft earth by reason of its great weight, and to have constructed platforms or lateral turnpikes on which to run it off from the road under construction would have been impracticable. The plaintiffs were driving along the road on the Sunday in question with a horse which the plaintiff Keeley had owned for some months. The roller was in full view, and was seen by the driver when distant therefrom some two hundred yards. Keeley testified that he thought it was an object that would frighten any animal, yet he appears to have taken no other precaution except to reduce the speed of his horse to a slow trot, “ almost to a walk.” The horse showed no signs of fear until about opposite the machine, when he looked at it, reared, overturned the buggy, threw out the plaintiffs, and occasioned the injury complained of. We do not, of course, know what particular feature of the machine frightened the horse. It was alleged to be the flapping of the canvas cover. This, however, is mere surmise, as the cover was fastened down, and the fright of a horse cannot be measured by any known rules.

I have stated the facts as briefly as possible, but I believe with substantial accuracy. Under the circumstances detailed, were the plaintiffs entitled to recover? In other words, were the defendants guilty of such negligence, in permitting the machine to remain where it was over Sunday, as rendered them liable in damages to a person whose horse became frightened at the obstruction, ran away, and thereby caused an injury ?

I think it may be conceded that had the roller been left upon an ordinary highway, not in course of construction or repair, the defendants would have been liable. We think there is a marked difference between the case of a finished public highway, thrown open to travel, and a road, be it a turnpike or an ordinary dirt road, in course of repair or construction. In the latter case there must necessarily be.inequalities, heaps of stone, and other materials upon the ground necessary for such operations. The defendants were lawfully engaged in the construction of this road; the steam roller was a machine necessary for its construction. Its use, therefore, was lawful. When in operation it was a much more formidable looking object, and far more likely to frighten horses, than when at rest. The act of June 80, 1885, P. L. 251, provides for the moving of steam machines upon public highways. When in motion, “ upon the approach, in either direction, of all persons traveling in vehicles or in charge of teams,” it is made the duty of the person controlling it “ to move such machinery as far as practicable to the right or left of the road, to a position where the said approaching vehicle or team may pass with the greatest safety, and stop the same before such persons.....shall have arrived within three hundred feet of such machinery, and the owner qr owners, or persons in charge of such machinery, shall assist such passing vehicle or teams until they are safely by the danger,” etc. These provisions apply only to the operation of the machine; the act is silent as to the duty of the owner when his machine is at rest at night and upon a Sunday. What, then, is the duty of the defendants in the latter instances? Clearly, to place their machine in as favorable a location as possible with a view to avoid accidents; to locate it near one side of the road, so as to give the traveler all the space reasonably convenient to pass by it. The law does not exact impossible or unreasonable things. In our view, the defendants appear to have done all that was practicable to avoid accident to others, and when no negligence is shown on their part there can be no recovery.

The plaintiffs, as before stated, were in full view of the machine for some distance before they reached it. It was well calculated to frighten tneir horse, and they were aware of it. If they did not know it, they either possessed less than average intelligence, or they must have been utterly ignorant of the nature and disposition of horses, neither of which is to be presumed. Coming, then, to the presence of such an object, an ordinarily prudent man would probably have done one of two things; either to turn back and take another road, and thus avoid the obstruction, or get out of. the buggy and take his horse by the head. In the one case the danger would have been wholly avoided; in the other, it would have been reduced to the minimum. The plaintiffs did neither. Mr. Keeley evidently relied upon his horse, or his ability to control him. He certainly had the right to proceed in the way he did. But when one approaches a known danger, which he might easily have avoided, it is not just to charge the consequences of his rashness upon others who have not participated in it, nor been guilty of any neglect of duty.

I have not discussed the authorities cited to sustain the plaintiffs’ position, because I am unable to see their application. They are mostly cases where obstructions had been unlawfully placed or left upon the public highway. The distinction between this class of cases and the one in hand is so obvious that it is not necessary further to refer to it.

We are of opinion that the defendants’ eighteenth point should have been affirmed.

Judgment reverse,d.

no. 49.

Opinion, Mr. Chief Justice Paxson:

This case is ruled by Keeley v. Shanley, just decided.

Judgment reversed.