
    ROCKEFELLER TOWNSHIP vs. RHODES.
    Circumstantial evidence of neglect to keep the highway in repair is sufficient to render the township liable in case of an accident.
    In an action for damages for negligence, it is not necessary to make demand before suit brought.
    Error to Common Pleas of Northumberland County. No. 117, January Term, 1883.
    The charge of the Court was as follows, per
    Rockefeller, P. J.
    This is an action 011 the case, brought by Henry M. Rhodes, the plaintiff, against the township of Rockefeller, defendent, to recover damages by reason of an injury that he alleges he sustained on the morning of the 12th of March, 1881, in consequence, as he alleges, of the negligence of the township in not keeping in good order and repair a certain public highway ,in that township.
    It is the duty of the supervisors of the several townships-in this State to keep the roads in good order and repair, and although not universally the case, yet ordinarily bridges are considered as part of the highway. The Act of Assembly also makes it the duty of the supervisors of the township to keep and maintain the public roads within their borders. Supervisors of roads are personally liable for their negligence. And so it has been held to be the law for many years in this State, that the several townships are also liable for negligence, in not maintaining and keeping the roads in good order and repair for the use of the public.
    There does not appear to be any dispute in this case, that the road leading from Trevorton to Sunbury, along by Miller’s, was and is a public highway. It has been used by the public-for twenty-one years, and no question has been raised in this case as to that. So that it was the duty of the supervisors, they being considered as agents of the township, to keep this road in good order and repair.
    The plaintiff alleges that on the morning of the 12th of March, 1881, as early as four o’clock, and before daylight, he-left his home in Trevorton to come to Sunbury, and in traveling along this road, at a point, as he stated, between the two widow Blooms, he came to a small bridge. As he came there, he says, his horse made a plunge, and as he was holding the-lines carelessly, not expecting anything of the kind, he suddenly drew them up and spoke to the horse; that then the-buggy wheels struck the bridge. He first asked the horse to go on; she didn’t go; he then hit her with the lines and she-started off. He says after leaving this bridge, she, the mare he was driving, was lame. He alleged that before that time she was not lame, and for that reason he believes she was injured at that place and at that time. This is a question 1 leave to you to determine.
    ' He alleges that there was a hole along the south side of th e-bridge, extending along the bridge nearly as long as the wheels were broad, of some depth. You will recollect it was-dark and he didn’t get out of his wagon to examine it, until he drove onto Sunbury and returned again the same afternoon, his horse still being lame. There does not seem to have-been anything done after he got home until Monday, when he called on Mr. Haupt, a man with some experience as a veterinary surgeon, and getting a prescription from him, applied it.
    Now he alleges, gentlemen of the jury, that this bridge and road at this point were defective and out of repair, and in-■consequence thereof his horse was injured. Those are matters in dispute and form the principal questions to be determined by you.
    On the other hand the township alleges that the bridge was in good order and repair, and that there was no hole there. It also alleges, that even if there urns anything of this kind, this mare was not injured at that place, at that time. So that you ■gee these are the principal questions you are to pass upon.
    Now, as to whether this bridge and the road at that place were out of order at the time of this alleged accident, you have ,got the testimony of the plaintiff. You also heard the testimony of several other witnesses as-to the condition of the road ■and bridge, but none of the plaintiff’s witnesses, as far as I recollect, were able to state they were there or passed over at that place on that morning. Some of them say they were in the habit of frequently passing and repassing there at about that time; they couldn’t fix the day, and that there was this kind of a hole along this bridge. That the bridge was several inches lower than the road, all the witnesses seem to agree. But tlo witness on the part of the plaintiff testifies to the fact positively, that the bridge was out of order, or that the hole was there on that particular morning.
    'In determining this question you must have reference to all the evidence in the case. If it is proved to your satisfaction that this hole was there a very short time before the morning ■of the accident, you will determine from all the evidence whether it still remained there in the same condition on this morning, and whether that is what caused the accident.
    The witnesses all seem to agree that that wras a very rough, stormy and severe spring, of heavy frosts and rains, and that there was a freshet about the 10th or 11th of February, a month before this alleged accident, when a number of the bridges in the township were destroyed and the roads became very rough. Was it at that time that this hole was washed in? The plaintiff and several of the wituesse« say that the logs of the bridge were caved in. That is — the one on the ■south side wras caved in against the one on the north side. Now was there a holelelt there alongside of the bridge as testified. to at the time of these freshets? and did- it remain there in that condition until the time of that accident? You heard the-testimony of Mr. Snyder and Mr. Newbaker and others on that subject and you will determine this question for yourselves.
    On the other hand, gentlemen of the jury, you have the testimony of several witnesses on this particular branch of the-case.
    Hiram Miller owns a mill within a short distance of this-place, and is obliged to pass this bridge every time he contesto Sunbury, and he said ho did pass and repass it, on different occasion s and often. He states that he passed over this bridge-on the morning of the alleged accident, at about 8 o’clock,, and that there wras no hole there. He saw nothing wrong, as he states, except that the bridge was a little lower than the road.
    Then you heard the testimony of the supervisor, Mr. Conrad, and of Mr. Brown, the person who ivas engaged as miller at the mill nearby. Mr. Conrad alleges he had been informed by Mr. Rhodes when in Sunbury that forenoon that this and other bridges out in that neighborhood was out of repair; that-Mr. Rhodes did not say anything about his -horse having been' injured, but only said that a horse might be injured at this bridge. Mr. Conrad, when he got home and got something to-eat, went immediately to seethe bridges. Of course, that was-' his duty. The supervisors of a township ought to keep a. constant watch over the roads, so far as it is in their power, and he went there along with Mr. Brown and examined that-bridge in the afternoon of the same day. They both testified that there was nothing wrong; that there wTas no hole. The plaintiff alleges that when he went back in the afternoon the ' hole was filled up. As I stated he had not seen any hole-there in the morning. He alleges that there was a hole there and that it was filled up with stones. If that is so, it must have been filled up, if you-believe the evidence of Mr. Miller-, ometime in the morning, before 8 o’clock, at least.
    
      • Then you have the testimony of Hiram Bloom on the part cf the plaintiff. He says that this bridge was a short distance from his house, and that he never saw anything wrong with it, except it was a few inches lower than the road. Now this, and all the other evidence there is on the subject, as to whether the bridge was out of repair, and whether there was .a hole there or not, is submitted to you.
    Whilst it is the duty of supervisors and of townships to keep in good order and repair the several public roads, it does nor always follow that they are liable for injuries sustained by travelers. The townships are only liable in case of negligence. 'They are liable only for injuries sustained in consequence of negligence on the part of supervisors or the township in performing this duty, of keeping the roads in good order and repair. If the roads and bridges are properly constructed, and they are washed out, and even become dangerous by reason •of a sudden and extraordinary freshet, and a person comes along soon after and sustains an injury, the township is not liable. If, however, a matr,er of this kind occurs, and the township supervisors do not repair them in a reasonable time, .and keep them in good and passable order, then they and the township are liable. Where defects of this character exist, where the roads and bridges are out of order, and this can be seen by persons passing and repassing, it is open and notorious and the township must be taken as affected with notice, and it is bound to make the repairs. Rosds and bridges must be constructed in a proper manner; that is, with reference to all usual and ordinary rains and freshets.
    Then, gentleman of the jury, another question to be determined is whether, even if this bridge -was out of repair, or this hole was washed in there and was in there on this morning, was this mare of the plaintiff’s injured in consequence thereof. It makes no difference how much the road or the bridge was out of repair; if the injury was not sustained in consequence thereof, the plaintiff could not complain of the township.
    All this, gentlemen of the jury, is to be taken into consideration by you in determining this question. If you find In favor of the plaintiff, then you will have to determine the question of damages. The general rule is, that the plaintiff, if he has sustained injury, to recover what would compensate him for the injury he has sustained. For instance, if you had a horse killed, the value of the horse with interest would be what the law would allow as the measure of damages. So, where an animal is injured, the extent of the injury must be taken into consideration by the jury. I suppose about the fairest way to get at it would be to consider what the animal was worth before the accident or injury she sustained, and what she was worth immediately after. Find how much the animal was depreciated in value in consequence of the injury and then allow interest on that.
    You have been sworn, gentlemen, to render a true and just verdict, and I have not the least doubt but that is the kind of verdict you will render. You must not allow your sympathy to have any weight with you whatever, but confine yourself entirely to the evidence. Does the weight of the testimony show you that this bridge was out of order, or that there was a hole there, and that in consequence of that this plaintiff's mare was injured ?
    The Court admitted evidence to prove that the road had been out of repair before the accident. In answer to a point by the defendant, the Court said that a demand upon the township officers was not necessary before bringing suit. The •defendant also put a point to the effect that if there was no direct evidence that there was a hole in the road as alleged, the plaintiff could not recover. The Court refused to charge as requested, saying that the question, whether there was a hole there, was for the jury to determine, and if there was, his right to recover was not barred by the want of direct evidence.
    The jury rendered a verdict for plaintiff for $76.40.
    The township then took a writ of error, complaining of the foregoing admission of evidence, and the answers to the points.
    
      L. Dewart, and Geo. W. Ziegler, Esqs., for plaintiff in error,
    argued that testimony to show that the highway had been out of repair at any other time than when the accident occurred was inadmissible; Hart vs. Evans, 8 Pa., 13; Hill vs. Meyers, 43 Pa., 177; Allen vs. Willard, 57 Pa., 379. There should have been a demand before suit brought; Pitt Township vs. Leech, 12 Pa., 38; Luzerne County vs. Day, 23 Pa., 143.
    
      G. Hill & Son and P. A. Mahan, Esqs., contra,
    
    argued that, direct evidence of the neglect to keep the highway in repair was not necessary; Blair vs. Seaver, 26 Pa., 274; Snevely vs. Jones, 9 Watts, 433; Hughes vs. Boyer, 9 Watts, 556; Myers, vs. Hart, 10 Watts, 104; Phila. & R. R. R. Co. vs. Schultz, 9 W. N. C., 148: Penna. R. R. Co. vs. Stranahan, 79 Pa., 405; Elkins vs. McKean, 79 Pa. 493. The officers of a township, have no right to settle claims for torts, and hence a demand was not necessary.
   The Supreme Court affirmed the judgment of the Common Pleas on May 14th, 1883, in the following opinion:

Per Curiam.

We discover nothing to correct in any of the seven specifications of error. The evidence received was properly admitted to show the actual condition of the bridge, and establish the negligence of the township. The case presented questions of fact. They were correctly presented to the jury.

Judgment affirmed.  