McClosky v. Borough

Opinion by Smith, J., The plaintiff recovered a verdict for damages because of personal injuries alleged to have been received by falling through a plank sidewalk in the borough of Dubois. The case presented questions of fact as to the condition of the footwalk, and the conduct of the plaintiff and of the officers of the borough. Was the walk safe, or was it out of repair and dangerous ? Had the borough authorities actual or constructive notice of its alleged defects, and were they negligent in failing to keep it in proper repair? Was the plaintiff injured because of the negligence of the borough officers having charge of the walk, and without fault on.her part? If so, to what extent, and what was reasonable compensation therefor ? There was sufficient evidence in relation to these questions to warrant the submission of the ease to the jury, and this was done with proper instructions for their guidance. The evidence complained of and made the basis of the first assignment of error was properly admitted, accompanied as it was by testimony that there had been no change in the condition of the footwalk'where the plaintiff was injured between the time of the accident and the time at which it was repaired bjr the witness: Lohr v. Philipsburg Borough, 165 Pa. 109; Davidson v. Sanders, 1 Pa. Superior Ct. 432. The defendant’s second point, the refusal of which forms the second assignment, asked the court to declare the evidence insufficient to charge the borough with constructive notice of the dangerous condition of the walk. There was evidence-that the planks were rotten and had been patched in places, and that this had been observed by various persons, for periods ranging from six weeks to one year preceding the accident. With such testimony in the case, it would have been error to withdraw the question of notice from the jury. The facts of this case differ materially from those in Lohr v. Borough, supra. In that case there was no obvious defect in the sidewalk, and from the plaintiff’s evidence it was clear that none could be observed in the exercise of a reasonable supervision by the borough officers. The defect shown was one which was discovered only after a special examination, and the witness who [186] made this testified that it could not be otherwise seen. In the present case there was testimony to the effect that the walk was elevated some two feet from the ground, and that its defective condition was obvious to those passing over it, without special examination. Under this evidence, it was for the jury to determine whether the sidewalk should not have received closer attention as its decay progressed. What was observable to the casual pedestrian should also be observable to those who were required by law to give it attention, and we cannot say that the jury erred in holding the borough to a measure of duty commensurate with the existing conditions. The allegation that the court failed to point out to the jury the character of the defect of which notice will be imputed to borough officers, as complained of in the fifth assignment of error, is not borne out by the facts. The court told the jury that: “ The question is not merely whether the sidewalk was defective but whether the defects' in it were noticeable to all passers by, because if the defect was latent or hidden and not observable by those who used the sidewalk, the borough cannot be held liable for it,” and the learned judge repeated the instruction that “ the defect must be so notorious as to be evident to all passers,” and quoted from opinions of the Supreme Court to the same effect. While there is nothing on the record which would justify us in ruling upon and giving effect to the fourth assignment; the matters there objected to deserve to be noticed. References by counsel to the physical infirmities or personal peculiarities of witnesses, having no connection with the matters involved in the issue, are in exceedingly bad taste and grossly violate professional ethics. These, however, are matters which are to be regulated mainly in the forum of honor by an observance of the proprieties. But the statement to the jury that if they should find that the “ walk was good, we will have this testimony engrossed and put your names to it and hang it up in the court house and call the attention of every person to it,” has the aspect of a threat, and for that reason should not be tolerated. In his opinion discharging the rule for a new trial the learned judge, in referring to the closing address of the plaintiff’s counsel, said: “ He made statements not warranted by the evidence, which was highly improper, yet inasmuch as it w;as stopped [187] upon attention of the court being called to it, I do not think the jury were influenced by it to the prejudice of the defendant’s cause.” But whether the jury were influenced by the objectionable language or not, it was impossible for the learned judge to know, and as they were not told that the threat which it contained was not to be carried into effect, it is quite possible that it may have secretly influenced them. For this reason, and as a deserved rebuke to counsel employing such tactics, the court should have granted a new trial. Jurors should be absolutely free to discharge their duties undeterred by fear of personal consequences of any description,, and it is the duty of courts under all circumstances not only to protect them from every form of intimidation but to promptly punish any attempt at intimidation, or any other improper influence. The specifications of error are all overruled and the judgment is affirmed.