Millcreek Township v. Perry

Opinion by Sterrett, J.: In this, as in every case of the kind, the burden of proof was -on the plaintiff below. It was incumbent on him to satisfy the jury by competent evidence that the township authorities care [478] lessty and negligently permitted the public highway to be and remain in a condition that was unsafe and dangerous for public travel, especially in the nighttime. No question is raised in regard to the admission or rejection of testimony; and hence all the evidence received and submitted to the jury must be regarded as both competent and relevant. It is unnecessary to refer to it specialty. It not only tended strongly to prove the allegations of negligence on which the action is grounded, but it was of such a character as to make it the imperative duty of the court to submit the question to the. jury. That was done in a clear and satisfactory charge, to which no just exception can be taken. The result was a verdict in favor of plaintiff.below, based upon the fact that his injuries were the result of defendant’s negligence. The only ground of defense that was or with any show of reason could be insisted on was the alleged contributory-negligence of plaintiff himself; and that, under all our authorities, was clearly a question for the jury, depending solely on the facts as they might find them from the evidence. There was nothing, either admitted or established by undisputed evidence, that would have justified the court in withdrawing the question from the jury and deciding as matter of law that plaintiff was guilty of contributory negligence. It therefore follows that there was no error in refusing to charge that “under the evidence in the case the verdict.should be for the defendant;” and hence the third specification is not sustained. Nor is there any merit in the fifth specification, for the oft-repeated reason that refusal to enter judgment of compulsory nonsuit is not assignable for error. . Defendant’s first and second points were rightly qualified by saying “that if the jury find from the evidence that the failure, on plaintiff’s part, to go through the excavated way, was in consequence of the darkness, and without any negligence on his part, then he would not forfeit his right to hold the towmship liable.” The third point, recited in the fourth specification, was duty affirmed. Considered in connection with other parts of the charge, there is no error in either of the detached portions thereof covered by the sixth to tenth specifications inclusive. The controlling questions were clearly for the jury, and plaintiff in error has no just [479] reason to complain of the manner in which they were submitted. Neither of the assignments of error is sustained. Judgment affirmed.