
    Grace v. Standing Stone Township, Appellant.
    
      Negligence — Townships—Roads—Defective culvert.
    
    1. In an action against a township to recover damages for injuries to a horse alleged to have been caused by a defective stone in a culvert, the case is for the jury where the testimony shows that the stone in question was “shelly,” “seamy” and “rotten”; that it was about an inch and one-half or three-fourths in thickness; and that it was subject to deterioration by the action of water and frost, and unfit for the use to which it had been applied.
    2. A township in Bradford county is liable for an injury caused by the negligence of a pathmaster appointed by the commissioner of roads and highways under the Act of April 13, 1843, secs. 15-27, P. L. 214, as extended to Bradford county by the Act of April 5,1844, P. L. 200.
    
      2. In an action against a township to recover damages for injuries to a horse caused by an alleged defect in a culvert, where a witness for the township who had assisted in constructing the culvert testifies as to the good quality of the material used, and that his attention had not been called to a stone which was alleged to have been unfit for use, it is competent for the plaintiff to contradict the witness for the purpose of affecting his credibility.
    Argued Nov. 22, 1911.
    Appeal, No. 186, Oct. T., 1911, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1906, No. 319, on verdict for plaintiff in case of William H. Grace v. Standing Stone Township.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a horse alleged to have been caused by a defective stone in a culvert. Before Fanning, P. J.
    At the trial it appeared that plaintiff’s horse was injured in March, 1906, by breaking through a culvert on one of the township roads. There was evidence that the horse stepped on a thin and rotten stone which had been used to cover the culvert.
    F. C. Landmesser, one of the pathmasters appointed by the commissioners under the Act of April 5,1844, P. L. 200, had superintended the construction of the culvert. He testified that the stone was not rotten, and that his attention had not been called to it as being unfit for the purpose for which it was used.
    Lincoln Kinner, a witness for plaintiff, was asked this question:
    “Q. At the time this sluiceway was built did you call Fred Landmesser’s attention to the condition of this stone that he was putting on the sluiceway? ”
    Objected to as incompetent, irrelevant and immaterial and not rebuttal.
    Objection overruled. Defendant excepts. Bill sealed for defendant. [3]
    
      “ Q. At the time this sluiceway was built did you call Fred Landmesser’s attention to the condition of this stone that he was putting on the sluiceway? A. I told Mr. Landmesser that was too shaky a stone to put over the sluice.”
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $150. Defendant appealed.
    
      Errors assigned were (1) in refusing binding instructions for defendant, and (3) rulings on evidence, quoting the bill of exceptions.
    
      J. C. Ingham, for appellant. .
    
      William Maxwell, for appellee.
    October 14, 1912:
   Opinion by

Henderson, J.,

There can be no doubt as to the duty of the township to construct its highways and maintain the same in a reasonably safe condition for ordinary travel. This obligation is expressly imposed by the Act of June 13, 1836, P. L. 551. The culvert at which the plaintiff’s horse was hurt was a part of the township highway. There is no complaint in regard to the plan of its construction, but there was evidence tending to establish the fact found by the jury that one of the stones used in making the cover for the culvert was “shelly,” “seamy” and “rotten”; that it was about an inch and one-half or three-fourths in thickness; subject to deterioration by the action of water and frost and unfit for the use to which it was applied. That a municipality is hable for defective construction of a part of a highway is shown by many cases. Other references need not be made than Easton Borough v. Neff, 102 Pa. 474, and Kennedy v. Williamsport, 11 Pa. Superior Ct. 91. Whether the culvert was constructed in a defective manner and without due regard to the safety of travelers was necessarily a question for the jury. To the practical sense and experience of that tribunal must be referred the inquiry whether the material used was suitable for the purpose.

It is not a defense that the work was done by the pathmaster instead of the “commissioners of roads and highways” who had general charge and supervision of all the roads and bridges in the township under the local Act of April 5,1844, P. L. 200. The pathmaster was appointed by t¿e commissioners and was subject to their orders. What he did under their general direction must be considered to have been done by them when the question of the responsibility of the township for the defective construction of a part of the highway arises. The township can only act through agents, and the obligation imposed by law cannot be discharged by transferring the duty to a subordinate agent. What the law commands must be done, and if the commissioners neglect to comply with this mandate the township is liable in case of a private injury even though such default arise from the mistake or inattention of the pathmaster. The sole controversy therefore is whether the question of an alleged defective construction of the culvert should have been submitted to the jury.

We do not find any error in the admission of the evidence which is the subject of the third assignment. Mr. Landmesser who had charge of the construction of the culvert testified in chief that the stone used for its cover was of good quality; that it was not shelly nor rotten; and that his attention was not called to this particular stone as being unfit for the purpose by Mr. Kinner who was working on the job with him. It was certainly competent to contradict the witness on this point for the purpose of affecting his credibility.

The judgment is affirmed.  