19 Pa. Super. 35 | Pa. Super. Ct. | 1902
Opinion by
The circumstances recited in the defendant’s first point were not of a character to justify the instruction asked for. The plaintiff’s conduct, as therein described, was not so manifestly negligent that the court could judicially pronounce it negligence per se. The question of her contributory negligence was clearly one for the jury. Nor was the evidence such as to warrant the conclusion, by the court, that the cellar door on which the plaintiff stepped “was obviously not intended to be so used,” as alleged in the defendant’s second point. Both points involved questions of fact which, under the evidence, were for determination by'the jury.
As to the third specification, there was no allegation by the plaintiff “ that the cellar door projected unlawfully into the sidewalk.” There neither was nor could be any denial that it was lawfully there. But a cellar door, occupying two fifths of the width of the sidewalk, must be regarded as so far a part of the public highway as to require the property owner to maintain it in such a condition as to be reasonably safe for such lawful use as the public may find necessary or convenient. This is particularly the case when the door is placed in front of a window so furnished as to invite the attention of passersby. The plaintiff’s right to use the door as she did is as undeniable as the defendant’s right to maintain it there — assuming, as the jury have found, that there was nothing to indicate to her that such use was attended with danger. The evidence showing repeated notice to the defendant of the condition of the door was uncontradicted, and warranted the conclusion that he had knowledge of its defects.
The cases cited in support of the specifications have nothing in common with the one in hand. In each, the injury was a consequence of needless exposure to obvious dangers. The conditions presented in the case before us were materially different in character, as to the visible elements of danger; and whether the plaintiff exhibited a lack of the care demanded by the circumstances was a question for the jury, since there was no
Judgment affirmed.