Hentz v. Borough of Somerset

Opinion by Reeder, J., The only question raised by the assignment of error is, Was the plaintiff guilty of such contributory negligence, as disclosed by her testimony, as to have made it the duty of the court below to affirm the point submitted by the defendant asking for binding instruction to the jury. (The court here stated the facts as recited in above statement.) The plaintiff lived on the same street on the same side upon which this crossing was laid. She was accustomed to traveling this pavement for twenty-one years. Yet with the pavement in this condition, with which she must have been thoroughly familiar, she approached it without looking or apparently heeding where she stepped, stumbled, fell and sustained this injury. The testimony, adduced by the plaintiff herself, shows such contributory negligence that the defendant’s point asking the court to direct a verdict for the defendant should have been affirmed. It is well established that any one knowing of a defect in a sidewalk is bound to protect himself from injury because of it, if it can be done by the exercise of ordinary care and prudence, and the absence of such prudence and care is contributory negligence. A greater degree of care, because of the increase of danger, is required in stepping upon all crossings than in walking along a continuous and uninterrupted sidewalk. The reasonable care which the law exacts requires travelers on the footways of public streets to look where they are going; especially when they are about to step upon the crossing of an intersecting street, where they are bound to expect the continuity, if not the level of the pavement, to be broken: Robb v. Connellsville Boro., 137 Pa. 42. In Dehnhardt v. Philadelphia, 15 W. N. C. 214, it was said, “ The condition of the pavement could have been seen if she had given attention to it ... . the duly of vigilance is as obligatory on the citizen as on the municipality.” In Philadelphia v. Smith, 23 W. N. C. 242, the Supreme Court held, “ that the plaintiff [228] could not recover if there was negligence on her part in walking without seeing where she was going.” In Hill v. Tionesta Twp., 146 Pa. 11, it was held that one who undertakes to use a public road knowing that it is unsafe and knowing the defects that 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. It is useless to continue citing authorities in support of such well, established principles of law. This defect was patent, not latent. It was as apparent to her as it was to every other citizen of that community. She had used this street for twenty-one years, and for two years prior to the injury it was as defective as it was the night the injury occurred, and this was as apparent to her as it was to any other passer-by, yet she not only passes over this defective part of the street at night when she could have passed on either side of it or upon the other side of the street, but she does so without looking at or thinking of the defective sidewalk. There can be no doubt that this is contributory negligence. Judgment reversed.