126 Pa. 80 | Pa. | 1889
Opikiox,
A careful examination of this record discloses no substantial error. The assignments are numerous, mostly relating to the charge of the court. The only portion of it which is not free from criticism is the answer to the plaintiff’s first point; (see tenth assignment.) The point is as follows: “ That the neglect of the defendant steam company to comply with the regulations prescribed by the town council of the town of Blooms-burg for the protection of public travel, as set out in the
This point is obscurely stated; the first sentence is plain enough; it called upon the court to declare the failure of the company to comply with the regulations of the town councils, as set forth in the permit, a culpable omission. The obscurity is in the second sentence. If its meaning was that the plaintiff could recover, unless his own carelessness had been very gross, it was error. The learned judge refused the entire point as a question of law, with a qualification which I think was intended to apply only to the first part of the point. If the said point was intended to convey the impression that the contributory negligence of the plaintiff must be very gross to prevent a recovery, it would have been error in the court to say, “ An inference from the facts, such as is here suggested, might be drawn by you.” That the court did not mean to give the jury the impression that the contributory negligence, if any, of the plaintiff must have been very gross to prevent a recovery, is apparent from his general charge, in which the law in regard to this subject is thus clearly stated: “ If the negligence of the plaintiff has contributed in any degree to the injury received, he cannot recover. This is no arbitrary rule, but is founded upon the highest reason; in another, and perhaps a more intelligible form, it is this: that if the plaintiff, by the exercise of the care required of him under the circumstances, would have avoided the accident, then he cannot blame any one but himself for the result.” This is in harmony with the cases. Our latest upon this subject is Monongahela City v. Fischer, 111 Pa. 9, where it was said: “ The affirmance of this point involved another error. It imposed a qualification upon the doctrine of contributory negligence that has not heretofore been recognized. It was, that if the negligence of the plaintiff did not contribute in a material degree to the accident, he
As before stated, we are unable to see any necessary connection between the fact that the defendant had not complied with the regulations prescribed by the town councils, and the question of the extent of the plaintiff’s contributory negligence. The most that can be made of the tenth assignment is that for an obscure point the plaintiff received a somewhat obscure answer, which, if not strictly accurate, could not have damaged the defendant. In view of the correct ruling of the court in the general charge upon this question we cannot give it the meaning imputed to it, and the jury could not have been misled.
We need not refer to the other points in detail. It was not negligence to drive upon the street in question at the time of the accident. The barriers had been taken down some days before, which wras an invitation to the public to use the street, or an intimation, at least, that the street was in order for travel. The plaintiff had passed over it earlier on the same day, and found it safe. How was he to know when he entered upon it that evening, the barriers still being down, that this cross ditch had been dug the same evening ? Whether it was sufficiently guarded, and the existence and location of the light, were matters for the juiy and upon which there was a conflict of evidence. They have found for the plaintiff, and the verdict is large, but the injury was grievous, such as few men in plaintiff’s position would be willing to receive for twice the amount. The case was fairly submitted to the jury by the court below, and the judgment must be
Affirmed.
