Sellers v. Union Traction Co.

Opinion by W. D. Porter, J., The plaintiff was, shortly before noon on July 12, 1898, at the northwest corner of Thirteenth and Arch streets in the city of Philadelphia. He wished to take a west-bound car of the defendant company and hailed an approaching one, which was of the summer type having a running board along the side affording a means of entrance along the entire length of the side. The crossing of Arch street for pedestrians was composed of three parallel lines of flagstones. The defendant company ¿Maintained a circular manhole twenty-eight inches in diameter, for the purpose of affording access to its underground wires, which was outside of and eleven inches distant from the north rail of its west-bound track, and the eastern edge of which was six feet west from the middle one of tbe three rows of flagstone crossings. This manhole was usually covered by an iron plate level with the street, but at the time in question the employees of the defendant company had removed the cover and were engaged in work at the opening. There was a covered dearborn wagon standing close to the north curb of Arch street and just west of the crossing, so that the opening in the street could not be seen by a person standing upon the sidewalls at the corner, but there was an unoccupied space of five or six feet between the dearborn wagon and the north rail of the track. The plaintiff having hailed the car Avalked out to the track on the middle row of the flagstone crossing; the car gradually slackened its speed and the plaintiff knowing that it had not stopped caught hold of the hand rails and walked along the street sideways intending to get onto the car when it should come to a full stop; he walked in this way five or six steps when his course carried him into the manhole and he Avas injured. . The running board of the car projected some distance north of the rails and covered when passing the manhole five or six inches of the opening, leaving twenty-tAvo or twenty9 three inches of the circular opening exposed to view. There was no crowd present and nothing to prevent the plaintiff having a full view of the street in which he was walking. The plaintiff testified explicitly that he took hold of the hand rails while the car was in motion and walked along the street intending to get on the ear when it had fully stopped; and he testified further that the car did actually stop about the time he stepped into the manhole. There was nothing in the evidence to suggest that the plaintiff was misled, by any irregularity in the motion of the car, into the belief that it had stopped, or was about to stop, and that he took hold of the hand rails for the purpose of at once mounting the car, or that he was by any sudden acceleration of the speed of the car dragged along the street and dropped into the manhole. No threatening peril or sudden emergency had supervened which might have interfered with the use of the faculties and judgment of the plaintiff and exempted him from the exercise of that care whichis required of those who walk in the cartway of a street. He was walking in the cartway of a street, and the fact that he had seen fit to take hold of the hand rails of a car which he knew to be moving did not relieve him from the duty of looking where he was going. There was no evidence that the eyesight or mental faculties of the plaintiff were not fully up to 'the average, and his conduct must be judged accordingly. The plaintiff had not looked at that part of the street in which this open hole was an object that could not have escaped his observation. Being upon the middle flagstone he turned and walked westward along the cartway for at least six feet, with his eyes fixed upon the inside of the car and taking no care as to what obstacles or pitfalls his footsteps encountered. At noon upon a bright summer day a man in full possession of his faculties and threatened, by no peril, stepped into an open hole in the street twenty-eight inches in diameter, which if he had been looking where he was going he must inevitably have seen. The only explanation of such an accident is that he was paying no attention to where his footsteps led him, and that is just what this plaintiff admitted to be true in his testimony in this case. It is the duty of every pedestrian upon a public highway to use reasonable care for his own safety and to avoid an open and apparent danger. He who fails to meet this 10 standard of duty is guilty of negligence. The facts in this case were undisputed; the plaintiff was walking in the cartway of the public street without looking where he was going, the danger into which he walked was open and apparent; the accident was unfortunate but it is clear that the negligence of the plaintiff contributed to the result, and it was the duty of the learned judge of the court below to so declare: Barnes v. Sowden, 119 Pa. 53 ; Dickson v. Hollister, 123 Pa. 421; Buzby v. Philadelphia Traction Company, 126 Pa. 559; Robb v. Connellsville Borough, 137 Pa. 42; Bacon v. Delaware, etc., R. R. Co., 143 Pa. 14 ; Lumis v. Philadelphia Traction Company, 181 Pa. 268; Hentz v. The Borough of Somerset, 2 Pa. Superior Ct. 225; Picard v. Ridge Avenue Passenger Ry. Co. 147 Pa. 195. The ingenious argument of the able counsel for plaintiff that this case is analogous to grade crossing cases, and that because the plaintiff looked where he was going when upon the sidewalk at the corner, from which point the dearborn wagon prevented his seeing this manhole, it was for the jury to say whether he looked at the proper place, does not seem to be sound. The danger which threatens at a grade crossing is from the rapid movement of a train over which he who is about to cross has no control, while the peril to the pedestrian from obstructions upon or holes in the street results from his own voluntary movements. The manhole in the street would have-wrought no injury to the plaintiff.if he had not turned and walked into it. The duty of the pedestrian is to look where he is going while he is going, and every time he turns a corner. The defendant was entitled to the binding instruction for which it asked and the judgment is reversed.