144 Pa. 14 | Pennsylvania Court of Common Pleas, Erie County | 1891
Opinion,
We are obliged to sustain the eighth assignment of error.
The learned court below, in the general charge to the jury on the subject of contributory negligence of the plaintiff, said: “It is a principle of law that, although the defendant in an action of this kind may have been guilty of negligence, yet if the plaintiff himself was guilty of any negligence which materially contributed to the happening of the injury, then he cannot recover, no matter how negligent the defendant may have been.” This is in direct conflict with at least two of our recent cases: Monongahela City v. Fischer, 111 Pa. 9; Oil City Supply Co. v. Boundy, 122 Pa. 449. In both these it was held that any limitation upon the effect of any degree of contributory negligence of the plaintiff, as defeating his right of recovery, was vicious, and could not be tolerated. In the first of them the present Chief Justice said: “But if we substitute the word ‘ material ’ for the word ‘ any,’ we practically abolish the rule, for a jury can always find a way to avoid it. The rule itself is valuable, and rests upon sound principles. We are not disposed to allow it to be undermined.” It is contended, however, that the law was correctly stated in the subsequent part of the charge, and therefore the jury was not misled, or may not have been misled by the erroneous instruction. Upon examining the charge, however, we find that the
For some unexplained reason, the present action was not brought against the parties who were guilty of the actual negligence which caused the plaintiff’s injury. It was brought against the city instead of the Stearns Manufacturing Company. The conditions of liability are very different in the case of the city from those which are controlling in the case of the company. The liability of the latter depends only upon the fact of their negligence resulting in the plaintiff’s injury. But the liability of the city is not a necessary consequence of the mere neglect of the company. Something more is required to be proved in the action .against the city than the fact that the company was guilty of the negligence which resulted in the plaintiff’s injury. Other elements enter into the inquiry as to the responsibility of the city.
The city had nothing to do with the placing of the. wheel which fell upon the plaintiff, and therefore cannot be charged with the consequences which resulted from its negligent placing. The wheel was not standing in any part of the public
We are of opinion, therefore, that the facts necessary to give rise to the liability of the city for this particular injury do not appear in the testimony; and, as there was no proof that the wheel that caused the injury had been placed in its position any considerable length of time before the accident, we think the first, second, fourth, sixth, g,nd seventh assignments are sustained. We do not sustain tire fifth and ninth assignments, as there was some evidence of a permanent loss of earning power to some extent, and its effect was for the jury.
J udgment reversed.