270 Pa. 401 | Pa. | 1921
Opinion by
This suit is by husband and wife for personal injuries to the latter, to whom we shall refer as plaintiff. In the fall of 1916 the city of Scranton entered into a contract with the defendant for the pavement of the cartway in Wyoming Avenue between Larch and Marion streets. The^ work included the usual cutting, filling, levelling, rolling, etc., during which vehicular traffic was excluded therefrom by barriers at street intersections. There was, however, no precautions taken to prevent lateral entrance thereon by pedestrians. The avenue was of the width of fifty feet, from curb to curb, which included a ten-foot wide parkway in the center. Before laying
In our opinion the rule to take off the nonsuit should have been made absolute. While it is not necessary in every case to guard the sides of a cartway closed to traffic, it is necessary to take such precautions as will reasonably safeguard the public; whether they have been taken in a particular case depends upon local conditions and is generally a question for the jury. Defendant, who stood in the place of the city, was bound to take reasonable precautions, consisting primarily in
It is familiar law that a pedestrian may cross a street at any point, and this right is not necessarily
In the present case it does not appear that the cart-way at the place of accident was particularly dangerous to walk upon, except for the trench, and of that plaintiff had no knowledge; so we are not prepared to hold her guilty of contributory negligence, as matter of law, merely for going upon the street. It doubtless might be so held had she gone there in the dark without a substantial reason; but she went to relieve serious distress or possibly to save life. Under such circumstances she will not be held guilty, of contributory negligence unless her act was so rash that an ordinarily prudent person would not have undertaken it (Corbin v. Phila., 195 Pa. 461; Toner v. Penna. R. R. Co., 263 Pa. 438; 29 Cyc. 523), and that was for the jury. “Circumstances may beget duties which, under ordinary circumstances, cannot be implied; and when such circumstances are shown to exist the question arising therefrom is not for the court, but for the jury”: Schilling v. Abernethy, 112 Pa. 437. “One is not precluded from recovering for an injury received from a defect in a road, though knowing it was defective, unless the danger was so apparent that in the use of ordinary care he ought not to have undertaken the passage”: Stokes v. Ralpho Township, 187 Pa. 333.
Whether plaintiff was negligent in the manner in which she went upon the street and in not seeing and
Even if parts of her own testimony, or that of some of her witness.es, showed contributory negligence, yet, as some parts of her own testimony were to the contrary, the question in any event was for the jury: Ely v. Pittsburgh, etc., Ry. Co., 158 Pa. 233; Strader v. Monroe, 202 Pa. 626, 632; Zenzil v. D., L. & W. R. R. Co., 257 Pa. 473.
This suit was a joint action by plaintiff and her husband in which he set up a claim, inter alia, for loss of her services. At the trial she sought to recover in her own right for loss of her earnings on the ground that, pending the suit, she had been deserted by her husband and, hence, was entitled to her earnings. This was properly rejected as her statement of- claim makes no averment of abandonment or demand for loss of her earnings, while the husband’s claim for loss thereof still remains upon the record, and under the pleadings he, if either, is entitled thereto. That a deserted wife may sue in her own name for loss of her earning power is undoubted (Schmelzer v. Chester Traction Co., 218 Pa. 29) but here plaintiff did not so sue.
The order is reversed with a procedendo.