Township of Kingston v. Gibbons

Opinion by Mr. Justice Trunkey: Eor about three months before the accident the planks on the culvert were loose, and one was warped and twisted so as to be easily displaced by a passing wagon, or turned over by a person or horse stepping on the side of it The plaintiff resided near the culvert, and had frequently noticed its defective and dangerous condition. Travelers were sometimes compelled to stop and [406] put the planks in place before they could drive over. When the planks were placed, the culvert often appeared safe, but they were liable to be thrown out at any time by use of the highway. The plaintiff had not noticed the culvert for a week or ten days prior to the accident. At that time it appeared safe; Mrs. Mulligan, who was with her, safely passed, and the plaintiff following was caught as if by a trap, and seriously injured. There was no other way for the plaintiff to go on her errand, unless over the gutter, which was unsafe for a woman in her condition; and over the gutter was a way which nobody was likely to take when traveling in the same direction. The supervisors during all the spring had not seen the culvert, and had neglected to ascertain whether the road, one much traveled, was in repair. Soon after the accident one of the supervisors was notified. He says he went, found the culvert in bad repair, and built a new one. These are the facts which the jury were warranted in finding; most of them uncontroverted, and as to those which were controverted the situation was to be settled by the jury. This case is not like Crafts v. Boston, 109 Mass. 519, where a man having knowledge of an open ditch by the side of the way and of ample room in the way, drove into the ditch, and there was no evidence of care on his part. But in Pennsylvania the rule has not been adopted that the burden of proof is on the plaintiff to show absence of contributory negligence. Where the gravamen of the action is the alleged negligence of the defendant, it is incumbent on the plaintiff to show a case clear of contributory negligence on his part. Lancaster v. Kissinger, 11 W. N. C. 151. It is enough that he makes out a case against the defendant, without showing that his own want of due care under the circumstances also contributed to the injury. The burden of proving want of ordinary care rests upon the party alleging it, and ordinarily the burden of showing contributory negligence is on the defendant. Mallory v. Griffey, 85 Pa. 275; Brown v. Gilmore, 22 Pa. 40. A week or ten days had elapsed from the time the plaintiff had seen the culvert in bad condition. She might have presumed that the defect previously observed by her had been re [407] moved. Aside from that, she may have forgotten, and the jury might impute her forgetfulness to other causes than negligence. The culvert was safe in appearance as she testified she was walking with a neighbor who passed before her, and if she thought about it at all, she probably thought it had been repaired. Where the traveler from mere foolhardiness, knowing that a defect exists, rushes against it, when he also knows it can be avoided by taking another way which is safe and convenient, he has no case for damages. Wharton, Neg. § 403. In Erie v. Magill, 101 Pa. 616, 47 Am. Rep. 739, the majority of the court, believing that the plaintiff not only had knowledge of the dangerous obstruction before the day of the accident, but also that she actually saw it at and immediately before her attempt to walk over it, as shown by her own testimony, held that it was error to submit the question of contributory negligence to the jury. Had the danger not been plainly visible, and her own testimony not have shown she saw it when she began the attempt to cross it, the facts would have been for the jury. Fleming v. Lock Haven, 15 W. N. C. 216, is a case where the plaintiff unequivocally testified that at the instant of her attempt to cross the danger, as well as when she left her house, she knew both the danger and a safe way around it. In the pending case the plaintiff saw that the culvert looked all right — she is corroborated by a witness who was with her — and at least a week had passed since the plaintiff had noticed the defect. Clearly, the defendant’s first point, namely, “that under all the evidence the verdict should be for the defendant,” was rightly refused. Nor are we convinced that the court erred in the instructions to the jury. Few, if any, of the assignments present even the appearance of error, when the matter complained of is read with the context. The defendant’s sixth point ought to have been refused. Its affirmance with qualification was not harmful to defendant. The point did not fairly state the whole pith of McGuire’s testimony. He plainly said that the split plank was laid level sometimes and then it looked all right; also, that “when this plank was laid in place, there was no hole there” and “the bridge looked all right” Had this fact been inserted in the point, the court would not have affirmed it. [408] Nor was ifc error to refuse the defendant’s seventh point. Lohman said the plank was covered up sometimes and then it looked all right. His last answer was “A hoard was over it sometimes, so that it was passableand he did not testify what was the appearance of the culvert on the day the plaintiff was hurt. The tenth assignment cannot be sustained. Judgment affirmed.