114 Pa. 238 | Pa. | 1886
delivered the opinion of the court,
The defects in the sidewalk had existed so long and were so well known to the plaintiff at the time he was injured, that the sole defence is that the plaintiff failed to show a case clear of contributory negligence. This defence would prevail had there been a safe and practical way by which the plaintiff could have reached his home. It is not alleged in the points submitted by the defendant, that there was a safe way; only a suggestion that the .plaintiff could have conveniently found a safer way in the street.
The jury were explicitly and repeatedly instructed that if the plaintiff failed to show a case clear of contributory negligence he could not recover. And their attention was so fairly directed to the testimony touching the question, and all the rulings of the court at the trial were so unexceptionable, that the defendant complains of nothing, save that its second, third, fourth and eighth points were refused, which points involved the finding of the fact of contributory negligence by the court, and the direction of a verdict for the defendant.
The defendant’s second point is as follows : “ The plaintiff’s testimony showing that he well knew of the defects *in the sidewalk, and that he could have avoided them by walking along the fence, or in the street, or around the square; and that having voluntarily chosen to take the risk of walking on the sidewalk in its defective condition, he was guilty of contributory or concurrent negligence, and cannot recover in this action.”
But the jury were not instructed that the plaintiff should have taken another unsafe route ; in effect, they were instructed that if he voluntarily took the direct walk, even if he knew it was unsafe, instead of one indirect and unsafe, and acted with the care with which a prudent man should have acted, under the circumstances, he was not guilty of contributory negligence.
Among the circumstances was the well-known bad condition of the streets and walks in that part of the city, which streets and walks were in constant use. Even if the muddy street was safer for pedestrians than the sidewalk, it could not be expected that persons would shun the walk and wade the street. When a city leaves a walk without guard or warning, persons going on foot usually take the walk — persons of ordinary prudence in the exercise of ordinary care, usually travel on the sidewalk, when it is known to be defective, rather than risk the dangers of the street. There had been no sudden or recent injury to the public ways ; the residents had become
A glance at the facts, as settled by the verdict, shows that this ease is not governed by the controlling principle in City of Erie v. Magill, 101 Pa. St., 616, and Fleming v. Lock Haven, 15 W. N. C., 216. In each of those cases the accident was in daylight, and a convenient and safe way was known to the injured party who chose not to take it.
Here, with little verbal change, the language of Justice Clar-K, in Borough of Easton v. Neff, 102 Pa. St., 474, is fitting: “ There was evidence in the cause, some of it inferential in its character, tending to show contributory negligence ; this was for the jury. In the use of a public highway, in general, ordinary care is undoubtedly the rule. Negligence is defined, however, by the absence of care according to the circumstances. In this case the plaintiff was quite familiar with the walk. He had passed over it often. He says he knew it to be a place of danger. The injury was„received after night and the night was dark. Did he exercise a proper measure of care? He was bound to use as much care as a prudent person would use under such circumstances. The measure of ■ duty in the case of a municipal corporation in reference to its streets is but ordinary, and the care of those who use them is the same, whilst the standard of the degree of care is to be measured according to the circumstances.”
In view of the testimony, affirmance of the defendant’s second and eighth points would have been error. As abstract propositions the third and fourth points might have been affirmed, but with reference to the testimony, the court properly ruled that they depend on the answer to the second point. Under the charge, the jury must have found that the street was unsafe to walk on, else the verdict would have been for the defendant. Whether it was daylight or dark the plaintiff
Judgment affirmed.