
    SUPREME COURT OF PENNSYLVANIA.
    THE BOROUGH OF PITTSTON vs. HART.
    1. A horse is liable to fright, and those ¿laving charge of public highways should make reasonable provisions against accident from a cause so common, and so likely to occur.
    2. A precipice by the side of a narrow street requires fencing quite as much as the sides of a bridge.
    3. Where horses running away on the public highway fell over an ungarded precipice by
    the side of the road, held, the negligence of the borough authorities Was the proximate cause of the accident. • •>..
    Error to the Court of Common Pleas of Luzerne county.
    May 7, 1876.
   Opinion by

GORDON, J.

The verdict and evidence in this case establish the following facts: Pittston is a large borough, having a population of some eight or ten thousand,and the street upon which this runaway happened is the main one of the town, and whilst its general width is some sixty-six feet, it narrows to a width of thirty-six feet, including the sidewalk, at the place of the accident; On the west side, and at the point mentioned, some twelve' feet lower than the street, is the Lehigh Yalley Railroad, from the track of Which up to a level with said street is á perpendicular stone wall, built, no doubt, for the protection of the rail" road. Notwithstanding the circumstances as above narrated made this a notoriously dangerous place, yet this part of the street was protected by neither .fence, guard, wall, or curb. On the 7th of May, 1875, the plaintiff’s two-horse team, in charge of his son, a boy of eighteen years of age, was quietly , and under full. control of the driver, passing along the way above described, when the horses took fright from an approaching locomotive,which, as the boy said, by reason ot the curve in the road,seemed to be coming down the street, and in spite of the efforts ot the driver rushed across the street' and over the wall above described. The result was, one horse killed, the other hurt, the wagon and harness broken, and the boy badly injured.

Complaint is made that the court' below suffered the jury to pass upon the question, whether the borough offi cers were negligent in permitting this precipice to remain unfenced, and whether the plaintiff’s loss resulted from that neglect. But we do not see how . the court could •have refused so to do. The accident happened directly from the want of a barrier between the street and the curb. The driver was not in fault; he managed his team as well as he could under the circumstances, but he had so little ot either time or space in which to control and quiet his horses, that his efforts were unavailing. It is true that without the frightmng of the horses there would have been no accident, but the horse is naturally a timid animal, and is so liable to fright that those having charge of the public.high ways ought to make reasonable pro vision, for, a matter so common and so likely to happen at any time. Horses abound, but horses that never frighten, or are never fractious, are exceedingly rare, and it roads were to be constructed only for such animals, there must need be but little traveling upon them. We think it was well said in the case of Lower Macungie Township vs. Merkhoffer, 21 P. F. S. 276, that it was no defense that by careful driving the accident. might have been avoided, since that would fall tar short of the purpose of a public highway. In the case of Newlin Township vs. Davis, 27 P. F. S. 317, the accident occurred through the fright of a horse upon a bridge unprotected by side railings, but it was not in that case pretended that the omission of such railing was not per se neglect, or that the fright of the horse relieved the township of liability. Now it is hard to understand why a precipice at the side of a narrow street does not require fencing quite as- much a? the sides ot a bridge. Such, in fact, is the very point in Macungie vs. Merkhoffer, for therq, it was held that the township was bound to fill up, or rence off, a dangerous excavation at the side of a public road. We can readily understand and excuse the wrant of precautions of this kind in wild and sparsely settled portions of the state, for the finances of the township are exhausted in' the making of roads even of an inferior character; but we can neither understand nor excuse the motive ot a borough, of ten thousand inhabitants, in refusing to properly guard a place on its main thoroughfare so dangerous as that now under consideration, especially when the expense of'.so doing would be but trifling. In Hay vs. Philadelphia City, 31 P. F. S. 44,we have a much.stronger case for>the defense than the one in hand for there the. roadway was of good width, and at least partially ' protected by the sidewalk and curb; besides this, the driver had left his seat by jumping from the buggy — the horse had torn away from him — and it was whilst in its undirected flight that it went over the river bank. Here, on the other band, we have not only the proximity ot the railroad, but a very narrow and ¡wholly unprotected street, and we have, also, the driver, maintaining his seat.. and endeavoring to guide his team to the very last moment. There is certainly, then, but little, if any, .doubt but that the negligence ot the borough authorities.was. the direct cause of. the accident complained ot with its resulting damages.

.0. 8. Stark, tor plaintiff; Strauss and Palmer, for defendant..

Judgment affirmed. [Tried before Judge .Handley in the court below.]  