Appeal, No. 272 | Pa. | Apr 20, 1903
Opinion by
The plaintiff’s horse Avas frightened by stepping into a hole in the asphalt surface of the street, and ran away. Within a square the plaintiff had got the horse partly under control when the carriage collided Avith a wagon which was in the street, breaking a Avheel of the carriage and overturning it. The non-suit Avas entered on two grounds : the contributory negligence of the plaintiff in not seeing and avoiding the hole; and that
When the horse stepped into the hole, the plaintiff was about to cross a street and pass in front of a market house, where the passageway for vehicles was narrowed by wagons backed against the curb. She testified that she was driving carefully, looking ahead to avoid vehicles, and did not see the hole, and could not see it because of the wagons in front of her; that she looked where she was driving, but could not watch both the surface of the street and the wagons ahead. The situation was one of peculiar difficulty because the street was obstructed by vehicles on one side and the passageway narrowed perhaps one third, and because she was obliged to look ahead constantly to avoid vehicles passing in both directions and to avoid the travel on the cross street. A more skilful driver might have avoided both dangers by observing the surface of the street and the course of travel ahead, but the plaintiff cannot be held to the exercise of the highest degree of skill and care. In a case in which this question was carefully considered, Graham v. Philadelphia, 19 Pa. Super. 292" court="Pa. Super. Ct." date_filed="1902-02-14" href="https://app.midpage.ai/document/graham-v-philadelphia-6273665?utm_source=webapp" opinion_id="6273665">19 Pa. Superior Ct. 292, it was said by the learned president of that court: “ It is to be borne in mind that in streets of a large city traversed by trolley cars, there are other perils to be guarded against and much more likely to be encountered and therefore to be expected than such a pitfall in a traveled way as is described in the testimony in this case. The driver of the vehicle must be on the lookout for them and cannot under all circumstances and in every case give his sole and undivided attention to the roadbed. It is impossible therefore to lay it down as an inflexible and unvarying rule of law that he must keep his eyes constantly fixed on the roadbed, and is affected with notice of every defect therein which can be detected by so doing.” Whether under all the circumstances the plaintiff was negligent was a question for the jury and not for the court.
On the question of proximate cause the case is clearly with the plaintiff. ' The negligence of the city in allowing the hole to be in the street caused the plaintiff’s horse to run away, and in running he collided with a wagon, breaking and overturning the plaintiff’s carriage. There was no break in the
The judgment is reversed with a procedendo.