Winner v. Oakland Township , 158 Pa. 405 ( 1893 )

S. J. winner's APPEAL.

Opinion by

Mr. Justice Thompson,

This suit was brought by appellants to recover damages for personal injuries consequent upon an accident which occurred upon a public highway in Oakland township. The learned trial judge entered a compulsory nonsuit and this is assigned for error. The appellant, Mrs. Winner, with her son and his wife and their child, and a daughter, having been on a visit in that township, started to return to their homes in a spring wagon, to which was attached a team driven by her son. For the purpose of reaching their destination they took the road upon which the accident occurred. This road had been laid out and opened for the public at a very early day, but, having received little or no attention, was in a bad condition. Before taking it, the appellant and her associates were informed that such was its condition, although traveled to some extent. Notwithstanding, they concluded to take it. Having traveled the road for a short distance they discovered an obstruction consequent upon a corduroy construction and a ditch washed out between it and the embankment on the left. The son got out of the wagon to make an examination. After a few minutes he returned and reported to those who were in it that the place was pretty bad but that he thought he could get over it by careful driving. Mrs. Mary Mechling testified: “We came on to this place and he got out and looked at it and seen it was pretty bad, but he said he thought he could get over it by careful driving.” And on cross-examination, in response to the question, “ When your brother came back, after looking at that dangerous road, what did he say ? ” she replied, “ He said he thought he could get over by careful driving.” And again, in response to the question, “ You knew it was dangerous, everybody could see it,” she said, “ He thought he could escape it by careful driving, and he did try it carefully.” And Mr. Herbert Winner testifies : “ And we came there and I happened to look ahead and I seen it was washed very badly, and some corduroy put in there that had been in some time ; and I stopped and examined it. I came back and I says, ‘ I think by careful work we can get through this all right,’ but the bank was so steep it throwed us into the rut.” And on cross-examination he said: “ I was certain I could get through with careful driving, but still it was so steep it wouldn’t let me. I expected by careful driving to keep up high enough on this bank.”

Thus with full knowledge of the danger of upsetting, and the possibility of injury resulting from it, appellant and ber associates took the risk in the hope of escaping accident by careful driving. Therefore, as she knew the condition of the road and the danger or risk which she chose to take, and as she suffered an injury while taking it, she was guilty of contributory negligence which precludes a recovery for it. This conclusion is sustained by Pittsburgh Southern Railroad Co. v. Taylor, 104 Pa. 311, where the principle is fully discussed and the cases considered.

For these reasons this judgment is affirmed.

b. s. winner’s appeal.

Opinion by

Mr. Justice Thompson,

November 13, 1893:

This suit was brought by the husband for loss of services of his wife consequent upon the injuries received in the accident referred to in Winner v. Oakland Township, and for the damage done to his wagon at that time. As the wife was not entitled to recover for the injuries sustained because guilty of contributory negligence, the appellant in this case was not entitled to recover. And as the wagon was in charge of those who were in it, and as they were guilty of contributory negligence, appellant is not entitled to recover for the damages done to it.

The judgment is affirmed.