Kuntz v. Waldameer Co., 68 Pa. Super. 73

Kuntz v. Waldameer Co.

68 Pa. Super. 73 | Pa. Super. Ct. | 1917

Opinion by

Head, J.,

The defendant company owned and operated what is called an amusement park in the suburbs of the City of Erie. To enable the desired patrons to reach the various buildings and structures provided for their entertainment and pleasure it became necessary for the defendant to construct and maintain a road across its own property leading from the public highway to- that portion of its grounds where the entertainment which sought public patronage was located. The public was thus invited to use the road as if it were an ordinary highway. Under such circumstances the duty imposed by law upon the defendant company to keep its road in a reasonably safe condition for those who availed themselves of its invitation cannot be doubted: Yocum v. Reading, 235 Pa. 552; Sheets v. Sunbury, Etc., Electric Ry. Co., 237 Pa. 153; Sellmer v. Ringling, 62 Pa. Superior Ct. 410. There was abundant evidence to warrant a finding that a dangerous rut or hole had been permitted by the defendant to exist in this road for such a period of time as to affect the company with constructive notice at least of its existence. The learned trial judge therefore rightly submitted to the jury, in a proper charge, the question of the defendant’s negligence. The verdict has established the fact such negligence existed.

*76The proposition most earnestly urged upon us by the able counsel for appellant is that the court below should have declared, as matter of law, the plaintiff was guilty of contributory negligence. We are unable so to conclude. It is said the plaintiff and her husband were riding on a motorcycle and that the seat occupied by the wife in the rear of her husband was insecure. It may have been so, but no court could so declare, as a matter of law. The plaintiff’s husband apparently was a competent person to operate the machine on which they were riding. While traveling along the road to that portion 6f the park they were invited to visit, they encountered an automobile approaching them. The glare of its headlights made it difficult for the plaintiff’s husband to see with any distinctness the condition of the road immediately in front of him. Too much stress we think is placed upon a single statement made by him in the course of his cross-examination to the effect that if he had not been blinded temporarily by the lights of the approaching automobile he would probably have seen the defect in the road and could have avoided it. This, of course, was not the statement of any fact and was but an opinion on the part of the witness. It is true he could-have stopped his motorcycle, as it appears to have been thoroughly under his control, but did not do it. Could the learned trial judge, with propriety, have declared, as matter of law, that his failure to actually stop his machine under these conditions amounted to contributory negligence? We cannot think so. A moment’s reflection will show that many automobiles might be leaving a pleasure resort at about the same hour in the evening: If the plaintiff and her husband were compelled by law to stop their machine and dismount until every automobile had gone by, they might be prevented from reaching their destination at all. The plaintiff’s husband was doubtless required by the law to so handle his machine, or if necessary to stop it entirely, as to prevent his collision with a pedestrian or vehicle *77on the road, the presence of which he was reasonably bound to expect. He was not bound to anticipate that a road on which he was invited to travel concealed a defect dangerous to him even while operating his machine with the greatest care. He could .see quite well enough to avoid an oncoming automobile. He was on the side of the road he had a right to be and he suffered the injury complained of because óf a defect in the roadway which he was not obliged to anticipate.

We are of opinion the case was for the jury on both branches and we find no reversible error in the manner of its submission. The assignments of error are overruled.

Judgment affirmed.