Brassington v. Mount Carmel Borough

Opinion bt Oblady, J., The first to the ninth assignments of error involve disputed questions of fact in regard to which the evidence was not sufficiently free from doubt to warrant the court in deciding that the pavement,, over which the plaintiff was walking when he received his injuries, was a mere dirt or country road, remote from the built up portion of the borough, as in Monongahela City [320] v. Fischer, 111 Pa. 9, and similar cases; but there was sufficient evidence to sustain a contrary conclusion. The accident happened on a street, with walks, buildings, well defined curbing, gutter and paving lines, on each side, and lighted by electric arc lights similar in character to the case of Wall v. Pittsburg, 205 Pa. 48. The plaintiff testified that he did not know of the defect in the pavement; that he had not passed over the bridge within six months prior to the accident, and that owing to the imperfect lighting of the street the hole in the pavement was not noticeable by any reasonable care. When the plaintiff was walking where he had a right to expect a safe pavement, he fell into a hole eight to ten inches wide and twelve to fifteen inches long, formed by a broken plank which the borough had permitted to remain in this dangerous condition for about three years. Under the testimony of his witnesses the risk was not a known or obvious one. The defect was not due to want of proper construction, but rather to improper maintenance of a much used highway after ample notice of its defects. The route taken by the plaintiff was the most direct one to his destination, and. the one generally used by persons going in his course. He was not negligent in selecting a way, the dangerous condition of which he did not know, although he had knowledge by actual previous trial that another way was safe. It was the borough’s duty to keep this pavement in a reasonably safe condition for the use of the public by night or by day; the citizen must exercise only reasonable care in its use. Whether the plaintiff exercised that care in this case was for the jury. See Smith v. New Castle, 178 Pa. 298; Walton v. Colwyn Borough, 19 Pa. Superior Ct. 172 ; Butcher v. Phila., 202 Pa. 1; Musselman v. Borough of Hatfield, 202 Pa. 489; Shaffer v. Harmony Borough, 204 Pa. 339. As the appellant confined the argument to the assignments of error above mentioned, it is not necessary to consider the others. The judgment is affirmed. Morrison, J., dissents,