Bean v. City of Philadelphia

Opinion by Mb. Justice Moschzisker, Plaintiff sued in trespass to recover for personal injuries alleged to be due to the negligence of defendant in failing to keep in proper repair a street upon which the former was driving. The trial judge entered a non-suit, the court in banc refused to remove it and plaintiff has appealed. The accident happened April 10,1916, at about 9 a. m., on Germantown avenue just below Stenton avenue. Germantown avenue at that point is occupied by two car tracks, one to the east for northbound trolley cars, and the other to the west, for southbound cars. Thb plaintiff was driving a horse, attached to a delivery wagon, northward in the east track, at a walk. Just south of Stenton avenue, he attempted to turn from the track, to the right, [280] and the front left wheel of the wagon dropped into a hole about twenty-four inches long, six inches wide, and four or five inches deep, which was easily observable. Plaintiff testified, in a most general way, that he did not see the hole because his attention was attracted to traffic on the street and pedestrians at.the crossing. On cross-examination, however, he was brought down to particulars, and either admitted or stated facts which made it plain that neither the traffic nor the pedestrians intercepted his view of the hole, as he approached it, for seventy-five feet or more; further, that he had not looked at the surface of the roadway for at least two minutes before the accident. When a person is injured in broad daylight by a defect in the highway which is easily observable, a presumption of contributory negligence arises, and the burden is upon the plaintiff to show conditions outside himself that prevented him from seeing the defect, or which would excuse his failure to observe it (Lerner v. Philadelphia, 221 Pa. 294; and opinion by Rice, P. J., in Graham v. Philadelphia, 19 Pa. Superior Ct. 292, 295). The present plaintiff did not overcome this presumption; on the contrary, he showed by his own testimony that he was negligent. The assignments of error are overruled and the judgment is affirmed.