Mueller v. Ross Township ( 1893 )

Opinion by

Me. Chine Justice Paxson,

Upon the trial below the learned judge refused the defendant’s first point, praying for a binding instruction in its favor. The plaintiff alleges that an accident occurred to his team by reason of the unsafe condition of one of the public highways of Ross township; one horse falling over an embankment below the road, pulling the other horse over with him, and causing some slight damage to the horse and wagon. The public road where the injury occurred was on the side of a hill, and at this particular point there was a curve with a slope on the other side, of six to eight feet to a fall. On the lower side of the road there was an embankment or footpath to protect it, upon which pedestrians walked. This embankment was one or two feet higher than the traveled road, and it served as a substantial protection to wagons or other vehicles in icy weather to prevent their sliding over the side of the road, or to guard against just such accidents as this. The plaintiff knew all about the condition of the road, having traveled over it frequently. He knew of the curve, and of the embankment. The accident in question occurred between eight and ten o’clock at night, and the plaintiff testified that it was so dark that he could not see the road, nor anything else. Under these circumstances he slackened the lines, and allowed the horses to go at will. The result was they left the traveled road, got upon this embankment, when one of them fell down the slope, dragging-the other with him, and causing the injury complained of. The plaintiff himself was not hurt.

It is not denied the road in question was safe for ordinary travel. There are few country roads that are safe at night when it is so dark that nothing can be seen. Knowing as he did the condition of this road, of the curve, the embankment, and the slope, and trusting entirely to his hoi’ses to select the traveled part of the road, the plaintiff assumed the risk. If he could not see he should have gotten out and led his horses. There are five senses to guide a man’s conduct, and the exercise of some one of them would certainly have enabled the plaintiff to know where he was and to discover the embankment. As he elected to be guided by the one sense, which, under the circumstances, was of no use to him, he must be presumed to have taken the risk of his horses getting up on the embankment, and falling down the slope.

The defendant was entitled to a binding instruction in its favor.

Judgment reversed.