#### Kriebel *v.*Worcester Township, Appellant.

*Negligence*— Municipalities—Townships— *Boadmasters*— *Steam rollers*— Fires—Contributory *negligence*— Case *for jury.*

1. A township is liable for the negligence of its agents and employees in the same manner as individuals and other municipalities.

2. A roadmaster appointed under Section 6, of the Act of July 22, 1913, ,P. L. 915, providing for the supervision, construction, maintenance and repair of township roads, is an agent of the township for whose acts the township will be liable.

3. While the absence of a spark arrester on a steam roller is not of itself evidence of negligence, where it appears that steam rollers are not usually provided with spark arresters, although such engines emit sparks, still the lighting of a fire in the engine of a steam roller in close proximity to a‘building, under certain weather conditions, may amount to negligence, as where there has been no rainfall for a considerable time and a high wind is blowing from the engine in the direction of such building.

4. Where in an action against a township to recover damages for the destruction by fire of plaintiff’s barn, it appeared that defendant’s roadmaster had stored a steam roller temporarily upon plaintiff’s premises, near the barn, and had caused the engine to be fired at a time when a strong wind was blowing, whereby sparks blown from the engine caused the fire complained of, and it further appeared that plaintiff did not see the machine when first placed upon her property and although when she noticed its presence she made no objection, yet she was not familiar with the dangers incident to its operation, nor with the intention' of the engineer with regard thereto, the questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury, and a verdict for plaintiff was sustained.

5. In such case the defendant cannot escape liability on the ground that the act of the roadmaster in placing the roller on plaintiff’s property without her permission constituted a trespass outside the scope of his authority, where it appeared that it was customary to leave the roller at or near the highway when, as here, the work was being done some distance from the shed in which the roller was kept when not in use.

Argued Jan. 31, 1916.

Appeal, No. 222, Jan. T., 1915, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1914, No. 15, on verdict for plaintiff, in case of *453Kate L. Kriebel v. The Township of Worcester.

Before Brown, O. J., Potter, Stewart, Frazer and Walling, JJ.

Affirmed.

Trespass to recover damages for the destruction by fire of plaintiff’s barn. Before Swartz, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $1,700 damages and $.06 costs and judgment thereon. Defendants appealed.

*Errors assigned*were answers to points, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.

*Nicholas E. Lanselere,*with him *E. Wilson Stahlnecker, Charles Townley Lanselere*and *Franklin L. Wright,*for appellant.

The firing of the engine in close proximity to the barn was not negligence.

The engine was placed on plaintiff’s property near the barn with her consent.

There was no proof that any sparks were ever thrown by this engine in its usual operation, therefore the charge of negligence has not been sustained: Jennings v. Penna. R. R. Co., 93 Pa. 337; American Ice Co. v. Penna. R. R. Co., 224 Pa. 439.

The plaintiff was guilty of contributory negligence in permitting the engine to be placed on her property near her barn.

*Eenry M. Brownback,*for appellee.

The defendant was negligent in placing the engine so close to the plaintiff’s buildings: Huyett v. Philadelphia & Reading R. R. Co., 23 Pa. 373; McCully v. Clark & Thaw, 40 Pa. 406.

The township is responsible for the negligent act of its agents done in the performance of his duties.

May 1, 1916 :

Opinion by

Mr. Justice Frazer,

This is an action against Worcester Township, Mont*454gomery County, to recover compensation for the destruction, by fire, of plaintiff’s barn caused by sparks thrown from defendant’s steam road roller. Defendant is a township of the second class and, under the provisions of the Act of July 22, 1913, P. L. 915, employed a road-master to superintend the care and improvement of the roads of the district within which the fire occurred. In May, 1914, the highway abutting on plaintiff’s property was in course of repair, and at the end of the day’s work the roadmaster, with the consent of plaintiff’s son, who was one of his employees engaged in the repair work, stored the roller on plaintiff’s premises within about ten feet.of a wagon shed attached to the barn. On the morning of the second day, and while a strong wind was blowing directly from the engine toward the barn, the engineer started a fire in the engine to prepare for service during the day, and shortly thereafter proceeded to move the engine to the road. Almost immediately following its departure from the premises plaintiff’s barn was discovered to be on fire near the place where the machine had been standing, and was totally destroyed. The action of the roadmaster in firing the engine situated as it was, without taking precautions to guard against damage to the property from fire, is the negligence alleged, and relied upon, to sustain a recovery. Following a verdict for plaintiff a motion for judgment for defendant non obstante veredicto was subsequently made and refused, and from the judgment entered on the verdict defendant appeals. The case was submitted to the jury in a careful and elaborate charge with which defendant has found no fault, the sole matters assigned for error being the refusal of the court to direct a verdict for defendant, and subsequent refusal to enter judgment non obstante veredicto.

That the township is liable for the negligence of its agents and employees in the same manner as individuals and other municipalities cannot be disputed: Dean v. New Milford Township, 5 W. & S. 545; Grace v. Stand*455ing Stone Township, 51 Pa. Superior Ct. 399. Nor can it be successfully claimed that the roadmaster appointed under Section 6, of the Act of 1913, and subject at all times to the direction and control of the supervisors, is not a township officer or employee.

The evidence establishes as a fact that steam rollers are not usually provided with spark arresters, and it is not denied that such engines emit sparks, though not to such an extent as railroad locomotives and the latter are ordinarily supplied with such safety contrivances. Although the absence of a spark arrester is not- in itself evidence of negligence, it may be a factor in determining whether or not negligence on the part of the owner of the engine existed under given circumstances. The township supervisors, as well as their agents, were bound to know and guard against the ordinary dangers incident to the use of a machine of this nature. The lighting of a fire in the engine in close proximity to a building, under certain weather conditions, might be a proper and safe act, while under other conditions such action would be considered a highly dangerous proceeding. In a case like the present where there had been no rain-fall for a considerable time, and with a high wind blowing from the engine toward the barn, extra precautions were necessarily required to avoid the danger incident to starting a fire in the machine while in a position so close to the barn, especially where, as in this case, the engine was equipped with a forced draft which caused sparks to be emitted upon the starting of a new fire, and lacked a spark arrester attachment. The engineer admitted the general practice to be, when the machine was in operation on the highway, not to add fuel to the fire while passing buildings. It further appeared the draft increased with the load of the engine, and, also, that the existence of a small embankment at the place where the engine was standing on plaintiff’s premises required increased power and draft, and increased the danger from sparks in moving from the bam to the road. Un*456der the Circumstances the question of defendant’s negligence was not one of law to be determined by the court, but for the jury to whom it was properly submitted.

Defendant further argues that the act of the roadmaster in placing the roller on plaintiff’s premises was a trespass, and not an act done in the performance of his duty, and consequently defendant is not liable for plaintiff’s loss. While it is true the township owned a shed for housing the engine located about two miles distant from plaintiff’s farm, it was not the custom to place the roller there at all times at the end of each day’s work, for the reason that a steam roller is a cumbersome and slowly moving machine, and to transport it for any considerable distance at the end of the day’s work, and return the following morning, means much loss of time. The usual rule, therefore, for storing the roller when not in use, when engaged in work at a distance from the shed, was to leave it at a convenient location along or near the highway. In view of this established practice the township cannot escape liability on the ground that its agent, in temporarily placing the roller on plaintiff’s property, committed a trespass outside the scope of his employment with plaintiff’s consent.

The question of plaintiff’s contributory negligence was also for the jury. She did not see the machine when first placed upon her property, -and was not consulted with reference to its being temporarily stored there. While it is true she noticed its presence shortly after its arrival, and made no objections to its remaining on her premises, she did not thereby necessarily assume full responsibility for the results that followed. Not being familiar with the dangers incident to the operation of the machine, and the best method of avoiding them, she was justified in assuming those having it in charge would exercise the reasonable care necessary in its operation to protect her property from danger, as the circumstances and weather conditions required. The same reasoning applies to the argument that her son, in giving *457consent to place the engine on the property, acted as the agent of his mother, and that his permission amounted to consent from her. Even if such assent were given, it did not amount to a license to operate the engine in a negligent or careless manner, or under conditions likely to result in injury to the property. Whether' plaintiff knew and fully appreciated the risk, and should have foreseen the-results that followed the placing of the engine on her property, was for the jury, to whom it was submitted in a manner as to which defendant can have no just grounds to either criticize or make complaint. The question whether the fire was actually caused from sparks emitted from the steam roller was also for the jury. There was ample evidence to warrant their finding in this respect; in fact, no other possible origin has been suggested by defendant.

We find no error in the record, and judgment is affirmed.