Coleman v. Towanda Township

42 Pa. Super. 146 | Pa. Super. Ct. | 1910

Opinion by

Beaver, J.,

The opinion of the court below, discharging the rule for judgment non obstante veredicto, which is the principal assignment of error, so clearly and concisely states the facts that, if it be included in the report of this case, it will be unnecessary to restate them here..

The defendant is charged with negligence in the construction of a simple plank bridge across a run seven feet wide, or thereabouts, which crosses the ordinarily traveled roadway. There was no special plan for the construction of this bridge, requiring the employment or design of an engineer. It is not alleged, as we understand it, that any special design was furnished. The road commissioners directed the pathmaster in general terms how to place the stringers and lay the plank thereon, which together constituted the bridge. There is no allegation that the bridge was not sufficiently strong, nor that it failed to vent the waters which were expected to pass thereunder. The case, therefore, does not raise the questions argued by the appellant in the cases cited, where there has been an honest mistake as to plan, strength, scope, capacity, etc., of a municipal improvement constructed in accordance with a definite plan. There is no allegation that the plan was faulty, but that the construction was negligent. This question was for the jury, and was fairly submitted to it by the court below.

The other question in the case was that of contributory negligence, in that the plaintiff failed to give proper heed to her footsteps; in other words, that she failed to look where she was going. It is true that her testimony is somewhat contradictory in this respect. When, however, her attention was called specifically to the manner in which she approached and stepped upon the bridge and the question was asked, “You were not looking where you were walking, were you? ” she replied, “Yes, I was looking where I walked.”

In Ely v. Railway Co., 158 Pa. 233, at p. 238, Mr. Justice Mitchell, in his opinion, says: “This testimony was contradictory, and the net result of it by no means clear.' On part of it he was plainly entitled to go to the jury, on the other part equally plainly he was not. Under these circumstances, the case must go to the jury whose province it is to reconcile conflicting statements, whether of the same or different witnesses, or to draw the line between them and say which shall prevail.”

Even if the plaintiff’s testimony in this case admitted of the interpretation placed upon it by the appellant, it was clearly for the jury. Both the question of the negligence of the defendants and the contributory negligence of the plaintiff wei¡e for the jury. As to the manner in which they were submitted, there is no complaint.

.The refusal of the court to give binding instructions for the defendant and to enter judgment non obstante veredicto are practically the only questions raised by the several assignments of error. The court below correctly disposed of both.

Judgment affirmed.