212 Pa. 379 | Pa. | 1905
Opinion by
About eleven o’clock on the morning of October 12, 1901, Margaret Becker, while walking on South Broad street, in the city of Philadelphia, a little north of Lombard street, stepped into an opening in the pavement, fell and was injured. This opening was in front of property No. 423, about five feet from the curb line, and was nineteen inches long and eig'hteen inches wide. A tree had formerly stood there, having been one of a row planted along the east side of Broad street from Pine to Lombard, but which had been cut down some time before.
If nothing more than the foregoing had been developed on the trial, the judgment of nonsuit could not be disturbed, for, clear as the evidence of the city’s negligence may have been, the plaintiff was as clearly guilty of contributory negligence, if she stepped into the opening, which, by the exercise of ordinary care in walking up the street, she was bound to see and avoid. But negligence is always want of care under the circumstances, and the question on this appeal is, whether, under those surrounding the plaintiff’s fall, the court correctly held that the only inference to be drawn from them was that she had contributed by her own negligence to her injuries, and could not, therefore, recover.
What were the circumstances connected with the plaintiff’s fall? Just before she reached the pavement in front of 423 South Broad street a crowd of young men—twenty-five or thirty—approached her, carrying suit cases and bags in their hands. They obstructed her view of the pavements in front of her, in one of which was the opening into which she stepped a moment afterwards. There is no evidence that she knew it ■was there, though it had existed for several months. She was carrying a large market basket and a butter kettle. The crowd separated and allowed her to pass through it, and almost immediately after she emerged from it she stepped into the hole and fell. Her testimony in chief was : “ Q. State what happened to you after you crossed Lombard street. A. When I got three or four doors above Lombard street I met a lot of
The judgment is reversed and a procedendo awarded.