45 Pa. Super. 404 | Pa. Super. Ct. | 1911
Opinion by
The plaintiff was walking on the east side of Twenty-second street, toward Delancey street, and had almost passed a bay window projecting three feet from the house line on Twenty-second street, when she turned and went back to get her daughter, who had lingered behind. Having repassed the window, she turned in close to the house wall in order to avoid a crowd of people going from church, and, after proceeding a foot or two, stepped into the light well of a basement window, fell and was injured. According to the varying testimony of the witnesses, this light well extended from two and one half to three feet along the house line, from ten to eighteen inches out into the sidewalk, and was from one to three feet deep. It was not guarded by a grating or otherwise. The sidewalk was eight feet wide, but about one-third of the walking space was taken up by Belgian blocks piled on the curb side.
In Robb v. Connellsville Borough, 137 Pa. 42, a leading case, it is said that the reasonable care which the law exacts of all persons, in whatever they do involving the risk of injury, requires travelers on the footways of public streets to look where they are going. This is imperative; but, as was said in that case, as well as others since, this does not necessarily imply that the pedestrian must keep his eyes constantly and at every moment upon the pavement. The thought is clearly expressed in the late case of Lerner v. Philadelphia, 221 Pa. 294: "One is not required in walking along a traveled highway, to keep his eyes fastened upon the ground continually to discover points of possible danger; nor is it necessary that he should in order to avoid exposed pitfalls lying directly in the path before him; but the law does require that he be observant of where and how he is going so as to avoid dangers which ordinary prudence would disclose.” We recognize the principle, that it is in vain for one to say that he looked and did not see, when, if he had looked, he must have seen, and that in such a case it is not the duty of the court to submit to the jury the question whether he looked and failed to see the danger. But, as has been repeatedly de
It is argued that this light well was a lawful construction and therefore the court should have declared, as a matter of law, that the city was not liable for permitting it to be maintained in the highway. Counsel cite King v. Thompson, as ruling the question. There the court was asked to affirm a point which read: “If the jury find that the area in front of the cellar window was such as was usual and customary in the city of Allegheny for lighting and ventilating cellars, and reasonably necessary for those purposes, then the defendant is not guilty of negligence or nuisance in maintaining it.” It was held that the court ought to have affirmed the point. The effect of doing so would have been to submit to the jury the questions of fact; first, whether the opening was such as was usual and customary in that city; and, second, whether it was reasonably necessary for the purpose of lighting and ventilating the defendant’s cellar. This fell far short of deciding that if there be evidence of those facts the question should be withdrawn from the jury and decided by the court as a matter of law; much less that even though there be no evidence of these facts it is still the duty of the court to declare that such an opening in the highway is lawful. In determining whether a conclusion of law in any adjudicated case is a precedent in a subsequent one, the value of the first, usually, is measured by its similarity or dissimilarity to the second in its controlling facts: Yoders v. Amwell Twp., 172 Pa. 447. Keeping this familiar principle in mind, it needs no argument to show that King v. Thompson 87 Pa. 365, would not have sustained binding directions in favor of the defendant. Reliance is placed upon secs. 11, 12, and 13 of an ordinance of the city of Philadelphia, adopted in September, 1864. Section 11 of that
The judgment is affirmed.