Feldman v. Riccordino

Opinion by Portee., J., This is an action of trespass to recover for personal injuries to Harry Feldman, a minor sixteen years of age, who in this action was represented by his father and next friend, the latter also suing in his own right. The plaintiffs recovered verdicts and judgments in the court below and the defendant appeals. Young Feldman was injured, in January, 1912, while coasting upon a street of the city of Pittsburg, by coming into collision with a large pile of iron and junk which the defendant had maintained in the street for at least one month prior to the accident. There are in this' appeal but two assignments of error, one referring to the refusal of the court to give binding instructions in favor of the defendant, and the other to the refusal of a new trial. The accident happened on a Sunday evening, and the evidence would have warranted a finding that there was at that time no traffic upon the roadway of the street in question, and that the boys while engaged in coasting were able to control the motion of the sled where other highways crossed the street in question. The evidence would have warranted a finding that the street at this particular locality had been very generally used by boys and children for coasting during the winter for many years. There was no ordinance of the city [117] forbidding the use of this street for coasting purposes, and the practice was not interfered with by the police authorities. There was in this case no evidence which would have warranted the court in declaring as matter of law that the character of the street and the highways which it crossed or into which it led was such as to render the practice of coasting in the locality dangerous and indulgence in the pastime negligence per se. Coasting upon a street which is not put to much public use, when not expressly prohibited by ordinance, is not necessarily a nuisance, nor is it an unlawful act, nolis it per se negligence: Burford v. City of Grand Rapids, 53 Mich. 98; Faulkner v. City of Aurora, 85 Ind. 130; Lynch v. Public Service Railway Co., 82 N. J. L. 712; Farrington v. Cheponis, 84 Conn. 1; Strutzell v. St. Paul City Ry. Co., 47 Minn. 543. When under the undisputed facts coasting upon a street is clearly and manifestly dangerous it may be the duty of the court to so declare as matter of law. But where the evidence is conflicting and the inferences to be drawn from it are not clear, the question whether a plaintiff has exercised such care and diligence to avoid danger, while coasting, as was to be expected of a reasonably careful and prudent person under such circumstances, is for the jury: Meyers v. Central R. R. Co. of N. J., 218 Pa. 305. .. The evidence in this case would have warranted a finding that this defendant had for at least' one month maintained in the cartway of the street a pile of scrap iron, including an old steam boiler and lot of old pipe, with other material, which extended from the curb a distance of ten or twelve feet across the cartway, the entire width of the cartway being only twenty-nine feet. This was not only in direct violation of the provisions of an ordinance of the city, but it was unlawful and a nuisance at common law. That the defendant had so maintained this obstruction in the highway was admitted at the trial, and the only question seriously in dispute, under the evidence, was whether a light [118] had been placed upon this obstruction upon the night in question. There was a conflict of evidence as to whether the defendant, or his employees, had placed a light upon the obstruction. There was also conflicting testimony as to whether the plaintiff who was injured had knowledge 6f the existence of the obstruction, or had passed it at an earlier hour on the same evening. The learned judge of the court below instructed. the jury that if the defendant, or his agent, had placed a light upon the obstruction on the evening in question, the plaintiff was not entitled to recover; he also instructed the jury that if the plaintiff was aware of the existence of the obstruction he was not entitled to recover. The plaintiff and two other witnesses had testified that there was no light upon the obstruction, and he and another witness had testified that the plaintiff had not seen the obstruction prior to the time he went down the street on his sled and was injured, and that he had not passed the point at an earlier hour that evening. The defendant called a number of persons whose testimony contradicted that of the plaintiff and his witnesses. The testimony upon these material questions being conflicting, it was necessary that it be submitted to the jury. If this defendant had failed to place a light upon the obstruction which he was unlawfully maintaining in the street, those facts certainly warranted a finding by the jury that he was guilty of negligence, particularly when the character of the obstruction was partially concealed by snow which had recently fallen: Munley v. Sugar Notch Boro., 215 Pa. 228; Hutchins v. Plymouth Township, 241 Pa. 141; Curry v. Erie City, 209 Pa. 283; Collins v. Philadelphia, 227 Pa. 121. The evidence in the case would not have warranted the court in declaring, as matter of law, that the plaintiff was guilty of contributory negligence, unless he had previous knowledge of the existence of the obstruction which caused his injury. The case was, therefore, one in which the jury must pass upon the [119] question of the negligence of the defendant and the contributory negligence of the plaintiff, and the court properly refused the request of the defendant for binding instructions in his favor. The first specification of error is dismissed. The remaining specifications of error refer to the refusal of the court below to grant a new trial. The principal reason advanced for the new trial below, and-most urgently pressed upon us here, is that the verdict was against the weight of the evidence. The testimony was conflicting, and, though to our mind it might fairly have led the jury to a different conclusion on the questions of the defendant’s negligence and the contributory negligence of the boy; these were questions of fact for the determination of the triers of facts, and not for the court: Kelly v. Traction Co., 204 Pa. 623. The action of the court in refusing a new trial is only to be reversed when an abuse of discretion by that court is made to clearly appear. We find nothing in the present case which would warrant us in' convicting the court below of an abuse of the discretion with which it was invested, and the specifications of error are overruled. The judgment is affirmed.