69 Pa. Super. 172 | Pa. Super. Ct. | 1918
Opinion by
In September, 1911, when Mrs. Johnston received the injuries for which she seeks to hold the defendant borough liable, she was fifty-seven years of age, in good health; had lived in the borough for a number of years and was familiar with its streets, roads and their general condition. While it was an incorporated borough, there were no paved streets or artificial sidewalks. Emerson avenue, on which the accident happened, for about a quarter of a mile had nine (9) dwellings on one side of the street and one on the other; the roadway and pavement was only covered with furnace slag, and at the edge of the pavement was a gutter to take care of surface water; the two ways were practically on the same level. The accident happened in the evening when it was quite dark, while Mrs. Johnston was going from her house to a street car station. As she described it, the. pavement was safe and used generally by pedestrians; it was covered with smooth cinder, except in front of Glovers, where the walk was about four feet wide there was a ditch or opening that had been left after making a pipe connection with the dwelling. This opening extended from the street into the sidewalk, from six to eighteen inches, had existed for some months and was of uneven depth, depending on surface washings and occasionally filling up. She knew of this hole in the pavement, having frequently passed it, and as she says “I was walking in by the fence and watching carefully for fear I would walk into the ditch, knowing it was in bad condition.” “I was watching to be careful, fearing it would happen, and I fell in the hole, that hole that was in the sidewalk.” “I was looking where I was going.” Further she testified, viz: Q. Mrs. Johnston, you have stated that there
The question of her contributory negligence is not a close one. Her acquaintance with the dangerous sidewalk and her voluntary adoption of the path instead of the roadway, which was admittedly safe and easily accessible, placed upon her the burden of exercising care in proportion to the special circumstances of the case. As said in March v. Phœnixville Borough, 221 Pa. 64, “The municipality is bound to keep its highways in fairly safe and travelable condition, and travelers are entitled to presume that it will do' so. Where the traveler has knowledge of a defect in the highway it does not follow as a legal consequence that he must under all circumstances avoid the use of it and reach his destination in some other way. It is a question of the character and imminency of the danger, and the difficulty or inconvenience of avoiding it. If the danger was serious and imminent it might be the traveler’s duty, as a matter of law, to avoid it at any inconvenience; if, however, the
Under ordinary circumstances the statement of law by the court is free from error, but under the testimony of Mrs. Johnston, it was apparent that it was confusing, contradictory and liable to mislead the jury in weighing her testimony. It could not be claimed that “she had
The judgment is reversed.