Smith v. City of New Castle

Opinion by Mr. Justice Gbeen, There is no doubt as to the rule that where a person passing on the highway, or on any other place of passage, public or private, has a choice of two ways, one of which is safe and the other unsafe for passage, and the person about to pass, voluntarily and knowingly chooses the unsafe way without any necessity for so doing, he takes upon himself the risks of the passage, and is guilty of contributory negligence: Haven v. Bridge Co., 151 Pa. 620, and many other cases. In Hill v. Tionesta Twp., 146 Pa. 11, we held that one who undertakes to use a public road, knowing that it is unsafe, and knowing the defects which make it so, but not choosing to avoid them, although he could do so by taking another road, cannot recover against the township for an injury resulting from such defects. But this doctrine involves necessarily the idea of knowledge of the danger on the part of the passing person. With a person having such knowledge, the choice of the unsaEe way is an act of negligence, and as the negligence contributes to the injury, the person injured is incapacitated from recovering any damages for the resulting injury. And this too without any regard to the question whether the defendant has been guilty of negligence in maintaining the situation of danger. In the present case the plaintiff testified that she had only been living in New Castle about four days before the accident; that she had passed along Jefferson street on the west side sev [302] eral times, but had not passed along on the east side where there was a hole in the street and that she had never seen the hole or had any knowledge or information concerning it. The night was dark, and there were no barriers or guards to prevent persons from falling in. Shortly before reaching this place she had crossed from the west to the east side of the street, and was proceeding along the east side towards the post office when she fell into the hole and was injured. There was an abundance of testimony to prove the existence of the defect in the street, and if the jury believed the witness she had no knowledge of the defect when she fell in. The learned court below granted a compulsory nonsuit, thus taking the case away from the jury, on the ground that the plaintiff was conclusively guilty of contributory negligence. That this would have been so if she had voluntarily and knowingly left the west side of the street, which she knew to be safe, and gone to the east side which she knew to be unsafe, cannot be doubted. But if she .knew nothing about the unsafe condition of the east side, the element which would convict her of contributory negligence is entirely lacking and the ruling would be incorrect. She had a right to presume that the east side of the street would be in a safe condition for travel, and if she had no actual knowledge or notice of its unsafe condition, she was certainly not chargeable with negligence as a matter of law in going to that side. The learned court below in granting the nonsuit, acted upon the authority of the case of Del., Lack. & West. R. R. Co. v. Cadow, 120 Pa. 559, assuming that it controlled the question in this case. ' But the facts in that case were of an entirely different character from the facts in this, and presented a radically different aspect of the question. There the highway along which the plaintiff was passing was crossed by two tracks of the defendant’s railroad, which was a visible and lawful obstruction. The plaintiff was in the daily habit of crossing the railway tracks on the highway and had a perfect knowledge of the whole situation. The sidewalks on hoth sides of the street where the tracks crossed them were in good and safe condition and in constant use. The plaintiff on a dark morning left the sidewalk and undertook to cross the rails in a diagonal direction, and in doing so he caught his foot in one of the rails, stumbled and fell, breaking one of his legs. We held him guilty of contribu [303] tory negligence because he voluntarily left the safe sidewalk and crossed at a place where he knew there was an obstruction. While he might not have known that the rails were not ballasted up even with the street at the ends of the plank crossing in the street, yet he knew of the presence of the rails across the street and necessarily assumed the risks of crossing that kind of an obstruction. But in the present case the defect in the street was, by its very nature, not a lawful condition of the street, and was not only not known to the plaintiff, but she had no reason to apprehend the presence of any obstruction or any defect of any kind. She cannot he said therefore to have been conclusively guilty of contributory negligence in crossing the street and using the other side for passage. But that question together with the question of negligence on the part of the defendant would have to he determined by the jury. In its facts the case is somewhat analogous to the ease of Douglass v. Monongahela City Water Co., 172 Pa. 435. We therefore sustain the assignments of error and send the case to another trial. Judgment reversed and new venire awarded.