229 Pa. 161 | Pa. | 1910
Opinion by
The plaintiff was injured by stepping on a loose grate over a gutter on one of the streets in the city of Lancaster. It tilted as she stepped upon it and she was thrown to the ground, sustaining the injuries for which she seeks compensation in this action. There was ample evidence of the defendant’s negligence, but a nonsuit was entered on the ground of the contributory negligence of the plaintiff, the court being of the opinion that, if she had looked where she was going, she would have seen the danger before her, which it was her duty to avoid. The learned trial judge, however, was clearly under a misapprehension of what was required of her in making out her case, and this may have led him into the error which must be corrected. In his opinion refusing to take off the nonsuit the following appears: “The burden was on the plaintiff not only to show that the defendant was negligent, but that she was free from any negligence that contributed in any degree to the accident: Lerner v. Philadelphia, 221 Pa. 294. We entered judgment of nonsuit for this reason and are now asked to strike it off.” Nothing said in Lerner v. Philadelphia conflicts with the rule that the negligence of a plaintiff, contributing to the injury complained of, is a matter of defense, and ordinarily the burden of proving it is on the defendant. Contributory negligence on the part of a plaintiff is no more to be presumed than the negligence of a defendant. The rule that a plaintiff must present a case clear of contributory negligence does not mean that, after proving affirmatively that the defendant’s negligence caused the injury, he must prove negatively that he himself was not guilty of negligence that contributed to the result: Bradwell v. Railway Co., 139 Pa. 404; Baker v. Westmoreland & Cambria Natural Gas Co., 157 Pa. 593; Fitzpatrick v. Union Traction Co., 206 Pa. 335; Coolbroth v. Penna. R. R. Co., 209 Pa. 433.
If it clearly appeared from the appellant’s own testimony, or from that of the other witnesses — so clearly
The assignments of error are sustained and the judgment is reversed with a procedendo.