Kelly v. Bennett, 19 A. 69

Kelly v. Bennett

19 A. 69

Pa.

1890

Check Treatment

Opinion,

Mr. Chief Justice Paxson :

Whilе this is a plain case for a reversal, we are embarrassed by the defective manner in which it was presented. The assignmеnts of error are very carelessly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or unskilfully drawn, and do not meet the case. Indeed, if we were to stand upon mere teсhnicalities, we would be compelled to affirm the judgment.

The first assignment is to the refusal of the court to grant a nonsuit, which we have said, at least a hundred times, is not assignable as error. The seсond and last assignment alleges error in not affirming the defendant’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍first, sеcond, and fourth points. The manner of assigning these errors is wrong, as our rules require separate assignments in such cases; only one point or subject should be embraced in an assignment of еrror.

The defendant’s first point is as follows: “ If the jury believe that the accident occurred by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the plaintiff stepping on the pаvement, by reason of ice or any other material, then the *223plaintiff cannot recover.” Inadequate as this point is tо reach the merits of the case, we nevertheless think it should have been affirmed, in view of the undisputed facts. The defendant below is the owner of a dwelling-house at the northeast cornеr of Spruce and Quince streets, in the city of Philadelphia. In frоnt of his house, on Spruce street, there was an iron railing abоut four feet high, to protect an area-way, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and perhаps the front of the house. The railing was pointed at the toр, of the arrow-head pattern. The plaintiff, while walking along the pavement on the afternoon of January 25,1888, slipped, by rеason of the snow or ice, or both, and in falling put out his hand, which came in contact with one of the points of the railing, and was lacerated. For this injury he recovered a verdict of 8782 in thе court below.

The defendant was not shown to have been negligent in any respect. The railing was a lawful structure. The defendant had a right to protect his area in that manner. Had he not dоne so, and some one had fallen therein and been injured, thеre ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍would have been more reason in charging him with negligencе. It is said, however, that it should have been constructed without pоints. This is not so clear. The points are useful in preventing mischievоus boys from climbing over it.

What reason had the defendant to anticipate that the plaintiff would slip and fall precisely at thаt spot, and that in doing so he would reach out his hand and strike the railing? And, if he had not such reason, the railing cannot be regarded, under our eases, as the proximate cause of the injury. It will not dо to say that the mere fact of the injury is evidence of negligеnce on the part of defendant. Had there been no railing there, the plaintiff might have fallen with his head against the sharp еdge of the step, and received a far worse injury; and if he may recover in the one case, why not in the other ? It will not do tо hold that, when a man slips upon an icy pavement, the owner of the pavement, or the fence, or the steps upon which he falls, must compensate him for any injury he may receive. New men would be willing to own property under such conditions. This plaintiff has no case, and we will not dignify it by a further discussion.

Judgment reversed.