Kelly v. Bennett

Opinion, Mr. Chief Justice Paxson : While this is a plain case for a reversal, we are embarrassed by the defective manner in which it was presented. The assignments of error are very carelessly or unskilfully drawn, and do not meet the case. Indeed, if we were to stand upon mere technicalities, we would be compelled to affirm the judgment. The first assignment is to the refusal of the court to grant a nonsuit, which we have said, at least a hundred times, is not assignable as error. The second and last assignment alleges error in not affirming the defendant’s first, second, and fourth points. The manner of assigning these errors is wrong, as our rules require separate assignments in such cases; only one point or subject should be embraced in an assignment of error. The defendant’s first point is as follows: “ If the jury believe that the accident occurred by the plaintiff stepping on the pavement, by reason of ice or any other material, then the [223] plaintiff cannot recover.” Inadequate as this point is to reach the merits of the case, we nevertheless think it should have been affirmed, in view of the undisputed facts. The defendant below is the owner of a dwelling-house at the northeast corner of Spruce and Quince streets, in the city of Philadelphia. In front of his house, on Spruce street, there was an iron railing about four feet high, to protect an area-way, and perhaps the front of the house. The railing was pointed at the top, of the arrow-head pattern. The plaintiff, while walking along the pavement on the afternoon of January 25,1888, slipped, by reason of the snow or ice, or both, and in falling put out his hand, which came in contact with one of the points of the railing, and was lacerated. For this injury he recovered a verdict of 8782 in the court below. The defendant was not shown to have been negligent in any respect. The railing was a lawful structure. The defendant had a right to protect his area in that manner. Had he not done so, and some one had fallen therein and been injured, there would have been more reason in charging him with negligence. It is said, however, that it should have been constructed without points. This is not so clear. The points are useful in preventing mischievous boys from climbing over it. What reason had the defendant to anticipate that the plaintiff would slip and fall precisely at that spot, and that in doing so he would reach out his hand and strike the railing? And, if he had not such reason, the railing cannot be regarded, under our eases, as the proximate cause of the injury. It will not do to say that the mere fact of the injury is evidence of negligence on the part of defendant. Had there been no railing there, the plaintiff might have fallen with his head against the sharp edge of the step, and received a far worse injury; and if he may recover in the one case, why not in the other ? It will not do to hold that, when a man slips upon an icy pavement, the owner of the pavement, or the fence, or the steps upon which he falls, must compensate him for any injury he may receive. New men would be willing to own property under such conditions. This plaintiff has no case, and we will not dignify it by a further discussion. Judgment reversed.