Platz v. McKean Township , 178 Pa. 601 ( 1897 )

Opinion by

Mr. Justice McCollum,

The plaintiff’s wife jumped or was thrown from a buggy and injured while driving upon the old Edinboro Plank road, in McKean township, about half a mile south of Middleboro. The court instructed the jury that if she jumped from the buggy the plaintiff could not recover. In the narr on which the case was tried the road was described as “ a public or township road commonly called the Old Edinboro Plank road leading from Erie to Middleboro.” At the close of the plaintiff’s evidence in chief the defendants moved for a nonsuit on the ground that the allegata and probata did not agree. The nonsuit was refused and, at the close of the evidence in the case, the defendants submitted a point to the effect that as there was no evidence that the injury was received between Erie and Middleboro" “ the verdict must be for the defendants.” The point was also refused. The counsel for the defendants frankly concede that they were not misled by the narr, and we cannot therefore see how the defendants were prejudiced by the alleged discrepancy between it and the proofs.

We cannot agree with the defendants that the dishing condition of the sluice had no connection with the accident. As described by the plaintiff’s witnesses it may have been a contributing if not the primary and sole cause of it. It was a matter of very slight, if of any importance whether the horse broke through the plank because of a defect in it, or because of the dishing condition of the sluice. The result was the same in either case.

We discover no error in the refusal to affirm the defendants’ 14th, 15th, and 17th points. The fact that the witness has an interest in the case may and should be considered by the jury in determining what weight shall be given to his testimony, but we know of no legal warrant for an instruction from the court that the testimony of a disinterested witness is entitled to “ more weight” than his. If Mrs. Platz had in her former testimony, or elsewhere, made statements contradictory of her testimony on' the second trial, such statements affected her credibility as a witness, but they did not authorize an instruction that “ the verdict must be for the defendants.” A previous statement that she did “ not know how she was injured ” may have referred to the degree or extent of her injury, and was by no means a complete defense to the plaintiff’s suit.

The excerpt from the charge which is the subject of the 17th specification is like the part of the charge which was the subject of the 8th specification in Long v. Milford Township, 137 Pa. 122, and for the reasons given in that case it is not cause for reversal. The 16th and 20th specifications may be considered together. They relate to the effect of a notice given to one of the road commissioners or supervisors of a township of the defective condition of a road in it. In Burrell Twp. v. Uncapher, 117 Pa. 353, the plaintiff was allowed under objection from the defendant to prove notice of the dangerous condition of the road. Tins, on appeal, was assigned for error, but the assignment was not pressed by counsel, and this court said there was no error in admitting the proof of notice. Notice to the supervisor was notice to the township. He was one of the officers or agents of the township charged with the care of its highways. “ The individual knowledge of officers or agents of a municipal corporation who in such capacity have powers or duties conferred upon them with reference to a given matter, is the knowledge of the corporation, and notice to such officers or agents is notice to the corporation, and the corporation is bound or affected by such knowledge or notice: ” Dundas v. City of Lansing, 75 Mich. 499.

The rejection of the offer to supplement the description of the condition of the sluice by the opinions of witnesses respecting the safety of it is well sustained by the decision of this Court in Graham v. Penna. Co., 139 Pa. 149. The description of the sluice was as intelligible and easily comprehended in this case as the description of the platform was in that. The cases cited to support the offer are plainly distinguishable in their facts from the case at bar. They were cases in which it was believed that the mere description of the place was insufficient to convey to the jury an adequate idea with reference to the danger.

The complaint that the court in affirming the plaintiff’s first point imposed too high a duty upon the township in regard to its highways must be considered in connection with the instructions in the general charge on this subject, and the answer to the defendants’ 8th point. So considered there is no reasonable ground for believing that the jury were led by the affirmance of the point to adopt an erroneous view of the powers and duties of the municipality in respect to the construction and repair of the public roads. The instruction as to the measure of damages has the express sanction of this Court in Kelley v. Mayberry, Twp., 154 Pa. 440, and a discussion of it in this case is therefore unnecessary. As the court instructed the jury that if Mrs. Platz jumped from the buggy the plaintiff could not recover, and as there was no other basis for ev.en a suggestion of contributory negligence, the defendants have no cause to complain of the instructions in this particular. We have carefully considered the general charge in connection with the answers to the points submitted by the parties, and we are not satisfied that the instructions were inadequate, partial or misleading. The specifications of error are overruled.

judgment affirmed.