Dickson v. Hollister

[429] OpiNion, Me. Justice Clark: This suit was brought to recover damages for a personal injury sustained by the plaintiff from falling into a coal-hole in front of defendant’s premises on Ninth street in the city of Pittsburgh, on April 10, 1886. The opening was in the sidewalk of a public street in a populous and much frequented portion of the city, and was used for the defendant’s private convenience. It was Ms duty, therefore, to exercise reasonable care and diligence, not only in making, but in keeping it safe and secure. He was bound to know that persons would pass and repass on this pavement not only in day time, but in the night time also, and that as the opening was in the centre of the sidewalk, they would, without apprehending danger, stop upon the cover which he placed over it. It is quite certain that this cover was not secure, or it would not have turned, and the jury has found that its insecure condition was owing to the defendant’s want of due diligence and care concerning it. It is absurd to say that in order to charge the owner of the premises with notice, “the defect must be so notorious as to be evident to all pedestrians passing in the immediate neighborhood.” Whether the cover was made and adjusted in a way that was reasonably safe and secure, was for the jury, and that question was fairly submitted. Was the plaintiff guilty of contributory negligence? Upon a careful examination of the whole case we find no evidence to justify any such inference. The following extracts from the testimony of Mr. Hollister are quoted and relied upon as tending to show contributory negligence on his part. He says: “ The pavement was apparently all right; I was going along and I stepped on this coal-hole cover, which went out in front of me and I went in. It was done so quickly I could not tell how it went out; it either slipped from not being properly placed on, or else it turned, one of the two.” “ Q. Did you notice this coal-bole covering at all before you stepped on it? A. I noticed it as any man would notice anything along the street. “ Q. Was there anything apparently wrong with it? A. No, sir; it was apparently all right, or I should not have stepped on it. “ Q. So far as you could tell it was resting properly in the [430] rim that supported it? A. I don’t look down to know that in regard to every coal-hole I come to. “ Q. II it had been displaced you probably would have noticed it? A. I might have noticed it, and might not; it is evident I did not notice it; it is evident it was displaced, and I did not notice it. “ Q. Of course you have no knowledge of it further than that it let you down ? A. That is all. I looked at it as it lay there to see what had been the cause of my going in there, and found — I saw there were pieces attached to it; little pieces of iron — three of them, I think, attached to the side of it; the front side had none attached, and it was the front side, towards Penn avenue, I stepped on ; my impression was it was slightly displaced, and as I stepped on it it revolved on these two places and went in front of me and let me in.” It is the duty of every pedestrian upon a public highway to use reasonable care for his own safety and to avoid «m open or apparent danger. But as the cover was placed in the pavement as a part of it, for persons to tread upon, it is plain that Hollister was not bound to exercise that critical and extreme care which would involve a particular examination of its structure and adjustment before stepping upon it. He had a right to assume that°not only the public but private owners had performed their duty, unless there was something reasonably apparent to give him notice or cause some apprehension of danger, when, of course, a greater degree of care would be required, and there is not the slightest proof that he had any such warning. Farrell was not an independent contractor; he was a mere servant; he was subject to the direction and control of Dickson, and might have been dismissed and another person employed at any stage of the work. Although, according to the testimony of the medical experts, erysipelas is not a necessary consequence of such an injury, yet it is conceeded that in frequent instances it does follow flesh wounds. The causes which produce erysipelas would seem to be obscure; the modern theory is that erysipelas is the result of some specific poison, which enters the system' through the exposure of a wound; but the nature of this poison and the conditions under which it operates, are not well understood. The disease was, however, a development which [431] might fairly have been anticipated as a result of the injury; and as in this instance the disease developed, in the wound, it was a reasonable inference of the jury that if there had been no wound there would have been no erysipelas. There is no intimation that erysipelas intervened from any want of care or skill on part of Dr. Orr, or that proper precautions were not taken by the use of antiseptics, etc., in the treatment of this wound. On the contrary, it is conceded that the disease, if not the necessary and usual result, frequently occurs in such cases. The negligence of the defendant may therefore be regarded not only as the direct cause of the wound but of the disease, which from occult causes, not attributable to treatment, improper habits, or peculiar constitutional tendencies, frequently develops from personal injuries. It was in this view of the case the court instructed the jury that even if the erysipelas was not the immediate result of the injury it might nevertheless be regarded by the jury as part of the injury itself. Nothing intervened to produce this disease other than might have been fairly anticipated as the direct, although not the necessary result, of the injury; as well might we attribute the contact of the atmosphere or the microscopic existences therein as an intervening cause in such cases. Upon an examination of the whole case we find no error, and the judgment is affirmed.