265 Pa. 498 | Pa. | 1920
Opinion by
Bridge street, running north and south, in the Borough of Rockwood, crosses Water street at right angles. On the east side of the first named street the Somerset
That the falling of the wire was due to the defendant’s negligence in failing to fasten it properly to the cross-arm does not seem to be questioned. The jury were instructed that there was sufficient evidence, if believed, that the defendant had been negligent in that respect, and it has not assigned this instruction as error. The two questions for our consideration on its appeal are: (1) Was there any evidence showing how the accident occurred? and (2) Was the contributory negligence of the plaintiff for the court?
The plaintiff testified that on the morning of April 24, 1917, he left the plant of his employer, the Rockwood Electric Light Company, for the purpose of procuring needed materials, and that when he crossed over from the southwest corner of Bridge and Water streets to the east side of Bridge street he suddenly became unconscious. Harry Growall found him in this condition, lying on his back, with the hanging wire running through his left hand. Another witness who went to his rescue found him in the same condition, with smoke coming through his hat. Growall stated that earlier in the morning he saw the wire dangling from the wire of the electric company, on which it had fallen. That
Was the plaintiff guilty of contributory negligence, and should the court below have so ruled for the reasons urged by counsel for appellant? That he crossed over from Water to Bridge street diagonally, instead of going directly across the latter street, and then crossing over Water and going up the sidewalk, was not necessarily contributory negligence, even if the suspended wire was outside the sidewalk and he could have avoided it if he had crossed directly over Bridge street and gone up the sidewalk. His right as a pedestrian was to cross the street at any point, even if in so doing he might encounter risks that were not on the sidewalk; but unless they were manifest, it was for the jury, and not the court, to say that he was negligent: Miller v. Lewistown Electric Light, Heat and Power Company, 212 Pa. 593. And he was not bound to anticipate that the defendant would negligently permit one of its wires to become dangerously charged with an electric current and hang over the street.
It remains only to determine whether the plaintiff should have seen and avoided the wire. Two of his witnesses testified that they had seen it shortly before, and in view of this it is earnestly insisted the trial judge should have held that the plaintiff should have seen it and avoided it. If the witnesses saw it, it was their duty to pass around it; but what the plaintiff did not see, and what, from the testimony, it can be fairly inferred he was not bound to see, he was not bound to avoid. According to the testimony of the two witnesses referred to, they saw the wire suspended five or six feet above the surface of the street. The plaintiff, who was about six feet tall, stated that when he passed up the street he did not see it. His testimony as to this is as follows: “Q. If it had been but five or six feet above
The assignments of error are overruled and the judgment is affirmed.