248 Pa. 365 | Pa. | 1915
Opinion by
In this action plaintiffs claimed to recover from the City of Philadelphia damages for the death of their nine year old son, caused by his falling from a bridge erected over the Schuylkill Canal by defendant city. The bridge was erected in 1885, and is an iron truss structure with overhead chords on each side, and on the outside of the planked roadway and about level with the floor, are two series of parallel iron bars or chords fourteen inches apart, extending horizontally from one main upright iron rod or post to another. The inner chords touch the ends of the floor planks of the bridge, and the fourteen inch space between the two parallel chords is unprotected. Inside of the inner chords and extending along the outer edge of the planks of the bridge is a cap log of timber six inches square. This marks the edge of the roadway, and is designed to keep wagon wheels a sufficient distance from the sides of the bridge to prevent the hubs from coming into contact with the iron work. The sides of the bridge are further protected by three
A bridge is a part of a highway on which it is found, and as such, the duty of keeping it in reasonably safe condition for travel is as imperative as the duty connected with other parts of the highway, Beaver County
In the sixth assignment the charge is criticised by the city solicitor as requiring the municipality to anticipate possibilities. While the words “possible” and “possibility” are uséd they are always coupled with and modified by the words “reasonable” and “natural, probably or likely,” and the jury was instructed that they could find for the plaintiff! if “what happened was only the natural result from what existed on the bridge,” this instruction can hardly be said to have prejudiced defendant.
The portion of the charge embraced within the fifth assignment of error is more open to criticism. The trial judge there said in effect that the city would be negligent if it built a bridge with an open space,- “which would possibly allow people that were properly using the bridge to fall into that space.” “Possibly” is defined in the Standard Dictionary as, “(1) by any power mental or physical, that is possible, (2) by extreme or improbable chance; perhaps.” If this statement stood alone it might constitute reversible error. Taken in connection with the other instructions contained in the charge it is apparent that “possibly” here was used in the sense of “perhaps,” and the proper limitations were frequently repeated in subsequent portions of the charge. In our opinion the jury could not misunderstand the direction on this point when the charge is considered as a whole. On the question of proximate cause it appears the bridge was used extensively by children of the neighborhood of which defendant presumably had notice.
The first assignment of error complains of the admitting in evidence of a postal card which the witness testified came in reply to a written complaint relating to the accumulation of earth, etc., on the bridge near where the accident happened. We see no error in this ruling. The subject matter was sufficiently identified by the witness, and by the card itself to render it admissible; Roe v. Dwelling House Insurance Company, 149 Pa. 96.
The general instruction on the measure of damages were full and correct, and the size of the verdict does not indicate that the jury went beyond the guide laid down by the court. While part of the charge dealing with the damages may be open to the criticism of inadequacy because it failed to specifically instruct on the present worth rule, yet, since counsel failed to submit a request on the point in question or to call the attention of the court to the alleged inadequacy, under the circumstances at bar, we are not convinced of reversible error. Mastel v. Walker, 246 Pa. 65; Fedorawicz v. Citizens’ Electric Illuminating Co., 246 Pa. 141.
On the whole the evidence was ample to take this case to the jury, and as we find no reversible error in either the court’s rulings or instructions to the jury, the assignments of error are overruled and the judgment affirmed.