
    Stonecipher v. Booth & Flinn, Ltd., Appellant.
    
      Negligence — Fright of horse — Depositing stump on road — Contributory negligence — Choice of route — Case for jury.
    
    1. In an action against a firm of road contractors to recover damages for personal injuries sustained by reason of a horse frightening at a stump which the defendants had left in a public road, the question of the plaintiff’s contributory negligence is for the jury, and a verdict and judgment for the plaintiff will be sustained, where the evidence shows that at the time of the accident the plaintiff was driving a roadworthy, and very quiet horse which she had been accustomed to drive for a considerable time; that she passed over the road and by the stump earlier in the day without any difficulty; that the stump was located on the margin of the road and partly on the wagonway with root face looking towards the plaintiff as she returned; that her view of the stump was a very short one on the way down, but in returning she could see it for about 150 feet; that on her return when she was nearly opposite the stump the horse frightened and she was thrown from the buggy; that there was another route by which the plaintiff could have returned home, but that it was twice as long and unfamiliar to the plaintiff; and that the condition of the other route was not disclosed by the testimony.
    2. One using a highway which is open for public travel is not necessarily guilty of negligence because he does not take another and safer route. Where the danger is so great and imminent that a person of ordinary prudence would avoid it, the court may say, as a matter of law, that the use of the more dangerous way is an act of negligence, but it is only when this imminent and obvious danger is clearly made to appear that the court can so act.
    Argued April 22, 1912.
    Appeal, No. 138, April T., 1912, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1908, No. 366, on verdict for plaintiff in case of D. E. Stonecipher and Emma Stonecipher v. Booth & Flinn, Ltd.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial it appeared that the plaintiff, Emma Stone-cipher, was injured on June 28,1907, while driving a buggy along the Frankfort road. The horse which she was driving became frightened at a stump which the defendants, a firm of road contractors, had left on the margin of the road.
    The circumstances of the accident are detailed in the opinion of the Superior Court.
    Verdict and judgment for Emma Stonecipher for $1,000, and verdict for D. E. Stonecipher for $500 which was reduced by the court to $250. Defendant appealed.
    
      Error assigned was in refusing binding instructions for defendant.
    
      C. L. Wallace and John S. Weller, for appellant.
    — Plaintiff was guilty of contributory negligence: Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Bredlinger v. New Hanover Twp., 148 P.a. 93; Bechtel v. Mahanoy City Borough, 30 Pa. Superior Ct. 135; Snyder v. Penn Twp., 14 Pa. Superior Ct. 145; Haven v. Bridge Co., 151 Pa. 620; Conrad v. Upper Augusta Twp., 200 Pa. 337; Crescent Twp. v. Anderson, 114 Pa. 643; Benton v. Philadelphia, 198 Pa. 396; Purcell v. Riebe, 227 Pa. 503„
    When a person is- driving on a highway and sees a dangerous object or defect in the road, it is his duty to avoid it and he cannot rely either on his horse or his own skill: Winner v. Oakland Twp., 158 Pa. 405; Mueller v. Ross Twp., 152 Pa. 399; Keeley v. Shanley, 140 Pa. 213; Pittsburg So. Ry. Co. v. Taylor, 104 Pa. 306; Heister v. Fawn Twp., 189 Pa. 253; Carr v. Easton, 142 Pa. 139; Mellor v. Bridgeport, 191 Pa. 562; Wilson v. O’Hara Twp., 14 Pa. Superior Ct. 258.
    
      Ernest C. Irwin, with him David Stonecipher, for appellee.
    — One is not necessarily guilty of contributory negligence because he uses a road which he knows to be dangerous. It is usually a question for the jury to decide under the circumstances of the particular case: McManamon v. Hanover Twp., 232 Pa. 439; Mellor v. Bridgeport, 191 Pa. 562; Stokes v. Ralpho Twp., 187 Pa. 333; Brown v. White, 206 Pa. 106; Altoona v. Lotz, 114 Pa. 238; Easton Boro. v. Neff, 102 Pa. 474; Miller v. Montg. Boro., 39 Pa. Superior Ct. 597; March v. Phcenixville Boro., 221 Pa. 64; Merriman v. Phillipsburg Boro., 158 Pa. 78; Forker v. Sandy Lake Boro., 130 Pa. 123.
    The courts will determine as a matter of law that the plaintiff is guilty of contributory negligence in using a public highway only when it is clear beyond question that the ordinarily prudent person would not have done as the plaintiff did: Cohen v. R. R. Co., 211 Pa. 227; Penna. R. R. Co. v. White, 88 Pa. 327; Phillips v. Traction Co., 8 Pa. Superior Ct. 210; Neslie v. Ry. Co., 113 Pa. 300; Mellor v. Bridgeport, 191 Pa. 562; Swanwick v. Monongahela, 36 Pa. Superior Ct. 628; Wilson v. O’Hara Twp., 14 Pa. Superior Ct. 258.
    July 18, 1912:
   Opinion by

Henderson, J.,

All of the appellant’s points except that requesting binding instructions were affirmed and no exception is taken to the evidence presented or to the charge of the court nor is it contended that the evidence was not sufficient to require the submission of the case to the jury on the allegation of negligence on the part of the defendant. The single question for consideration, therefore, is, does the plaintiff’s evidence disclose such a clear case of contributory negligence as required the court to give binding instructions for the defendant. The rule has been frequently stated to be that where there is a doubt as to the inference to be drawn from the facts or where the measure of duty is ordinary or reasonable care and the degree of care varies with the circumstances the question of negligence is necessarily for the jury: Penna. R. R. Co. v. White, 88 Pa. 327; Cohen v. Phila. & Reading R. R. Co., 211 Pa. 227, and it is according to this rule that the conduct of the plaintiffs must be judged. The negligence complained of was the depositing of a large stump on a public highway along which Mrs. Stonecipher was driving, at which object the horse frightened and threw her from the buggy thereby inflicting serious injury. The plaintiff was driving a roadworthy and very quiet horse which she had been accustomed to drive for a considerable time. She passed over the road and by the stump earlier in the day on the way to her sister’s home without any difficulty. The stump was located on the margin of the road and partly on the wagon way with the root face looking toward the plaintiff as she returned. Her view of the stump was a very short one on the way down, but in returning she could see it for about 150 feet. When she was nearly opposite to it the horse frightened and jumped, upsetting the buggy and throwing her out. The appellants contend that Mrs. Stonecipher having knowledge of the presence and appearance of the stump and that it was likely to frighten horses was guilty of contributory negligence in returning home that way, inasmuch as there was another road which she could have used. To maintain this position it is necessary that it appear that the risk was so obviously great that a person of ordinary prudence and care would not have assumed the hazard. Does the evidence necessarily lead to such a conclusion? The road was that which the plaintiff would ordinarily travel in going to her home from the place where she had been visiting; it was the best and nearest route; the roadbed was macadamized and in good condition. She had passed (the stump in the morning without trouble and was driving a horse in which she had entire confidence, justified by long use. The road was traveled daily by other persons, and the defendant’s own evidence shows that it was so used without difficulty occasioned by the stump. Having passed the obstacle in the morning without fright of the horse can we say as a matter of law that Mrs. Stonecipher should have taken a roundabout way to her home because she thought the stump might frighten some other horses? She did not think it would frighten hers. How can we declare that she was not warranted in relying on the steadiness of her horse? The route which she would have been compelled to take if she did not go back over the road on which she came was about twice as long as the other and she was not familiar with it and had not driven over it. Moreover, there is no evidence as to the condition in which the other road was at the time or that it was safer than the one which she used. She was not guilty of contributory negligence in taking the direct route to her home if she exercised the care which an ordinarily prudent person should exercise. One using a highway which is open for public travel is not necessarily guilty of negligence because he does not take another and safer route. Where the danger is so great and imminent that a person of ordinary prudence would avoid it the court may say as a matter of law that the use of the more dangerous way is an act of negligence, but it is only when this imminent and obvious-danger is clearly made to appear that the court can so act. We are unable to find anything in the plaintiff’s evidence which clearly establishes contributory negligence. It was for the jury to say whether considering the appearance of the stump, the experience of Mrs. Stonecipher in the use of horses and the established quality of the horse driven for gentleness it was imprudent for her to return home by the way over which she had gone. This question was submitted to the jury in an unable charge and this objection we think was in compliance with the duty' of the court as the case was presented.' The appellants have had the benefit of an able argument by their counsel, but we are not convinced that the court was in error in refusing to give binding instructions for the defendant.

The judgment is affirmed.  