208 Pa. 225 | Pa. | 1904
Opinion by
The plaintiff was injured by falling into the cellarway leading from the front of the building owned by the defendant to the cellar under it. The steps are at right angles to the building, which is on the west side of North Sixth street, between Market and Arch streets, in the city of Philadelphia. The cellarway is five feet three inches long and three feet eight inches in width. There is no guard rail on the south side of it. There was a stone on that side, called a guard stone by one of the witnesses for the defendant, which was about seven or eight inches high at the building and sloped down to a level with the pavement at the entrance of the cellarway. On the south side of the building there is a covered driveway. In walking out from it and turning to his left to go up Sixth street to get his team, which was on the other side near Arch, the plaintiff fell into the open cellarway.
The negligence of the defendant in not properly guarding the south side of the cellarway was so clearly for the jury that it is not necessary for us to discuss the question. If the court be
Though the plaintiff had frequently driven in and out of the driveway, he had never gone in or out on foot until the day he was injured. His wagon was a covered one, and he may not, often as he had driven in, have noticed this unprotected opening at the entrance. Counsel for appellant, .in their printed argument, assert that “it is a significant fact that the plaintiff did not say that he was not aware of this cellarway.” In making this statement his testimony was overlooked, for he testified that he “ was not familiar with the holes that were there,” that he “ was not familiar with the cellarway,” and that there was nothing to direct his attention to the place when he was in his wagon. These statements may have been true. Whether they were was for the jury, as was the probability or improbability of his whole testimony.
On the morning that he was injured the plaintiff left his team standing on the east side of Sixth street, a little north of defendant’s building, and carried over to and through the driveway a knife five or six feet long, which he left in the rear of the building to be sharpened. He testified that he was obliged to take it to the rear, which was reached through the driveway. Returning on the north side of the driveway, close to the building, as he approached the pavement, he saw a crowd of people passing up and down, through which he would have to pass or which he would have to join. Unfamiliar, as. he says he was, with this unprotected cellarway, and turning, as he most naturally would have done before going out on the crowded pavement, he fell into it. Under this state of facts, unless it was his duty to keep his eyes down on the pavement and look there only for danger to be avoided, he cannot be declared by a court to have been negligent. Coming out of the driveway and seeing, before he emerged from it, that the street
Judgment affirmed.