Templeton v. Warriorsmark Township

Opinion by Mb. Justice Potteb, The charge of the learned court below is a very careful and discriminating statement of the law, applicable to the facts of the case, with the exception of that portion which is assigned as the subject of the fourth specification of error. Here inadvertently, no doubt, the doctrine of contributory negligence was. carried to a limit which is perhaps extreme. [167] It was suggested to the jury that the plaintiff may have been guilty of contributory negligence in joining the party upon the night in question, in a sleigh ride over a public highway. The jurj'- were told that “ if she had not voluntarily made herself a member of this sledding party, she would not have received the injury she complains of. Now, gentlemen, was she guilty of negligence, under such circumstances, in attempting to pass over this road on the night of the accident ? If you find that she was, then she cannot recover from the township any damages for her injury, however severely she was hurt on that trip.”' It is true that it was left to the jury to say whether or not it was negligence for the plaintiff to attempt to travel upon the public highway at the time and place, and under the circumstances ; but the suggestion was put so forcibly by the court that we feel that it may have had undue weight in determining the action of the jury. The mere fact of passing over the public highway was not, in itself, sufficient grounds upon which to predicate contributory negligence. To do so would be going rather farther than the doctrine of any of our cases will warrant. The negligence charged against the defendant was confined to its action with respect to the particular portion of the highway where the accident happened. The plaintiff could only he charged with such negligence as co-operated with that of the defendant to produce the accident. It must, .therefore, be confined proximately to the time and place of the accident. It was going too far back in the sequence of events to suggest to the jury that, if the plaintiff had not voluntarily made herself a member of the sledding party, she would not have received the injury. The statement is true, as a matter of course, but it is tantamount to saying that, if she had not been present at the time of the accident, she would not have been hurt. We feel that the fourth specification of error must be sustained. None of the other specifications need discussion. The judgment is reversed, and a venire facias de novo is awarded.