Carr v. City of Easton

Opinion, Mr. Justice Mitchell : Mrs. Carr was a guest in the sleigh, which was the property of her brother-in-law, Trumbore. The exact relation to the party of Adams, who was driving, does not appear, but he was apparently a friend of Trumbore. He certainly was not in any sense the servant of Mrsl Carr. Under these circumstances, it was conceded in the court below, and at the argument, that the negligence, either of Trumbore or of Adams, was not imputable to Mrs. Carr: Carlisle Bor. v. Brisbane, 113 Pa. 544. . We have, then, the sole remaining question whether there was contributory negligence on the part of Mrs. Carr herself, so clearly shown by the evidence that the court was right in deciding it as a question of law, and directing a verdict for the defendant. It is entirely settled that this may be done in a clear case, but in a clear case only. Two recent decisions of this court are relied upon to support the present ruling. In [143] Crescent Tp. v. Anderson, 114 Pa. 648, there was a gully or small ravine across the public road, over which travelers ordinarily crossed by a bridge. Plaintiff, driving with her father, found the bridge impassable, the flooring having been torn up for repair; and her father then drove through the ravine at the side of the bridge, and in so doing the spring-catch of the wagon seat broke, and plaintiff was thrown out and injured. It was held that though the plaintiff was not affected by the negligence of the driver, yet, as she had voluntarily joined him in testing a patent danger, she was barred as matter of law by her own contributory negligence. A closely analogous case is Dean v. Railroad Co., 129 Pa. 514, where the same rule was applied to the plaintiff, who, riding with a neighbor in the latter’s wagon, neither stopped, looked, nor listened, nor requested the driver to do so, at a railroad crossing with which he was familiar. The essential point, in these cases, was the patent character of the danger, and in the latter, in addition, the violation of a fixed rule of law as to the duty of travelers in crossing a railroad, thus constituting clear legal negligence. This is the distinction between these cases and Carlisle Bor. v. Brisbane, supra; and also between the latter and Erie City v. Magill, 101 Pa. 616 ; Pittsb. S. Ry. Co. v. Taylor, 104 Pa. 306; Dehnhardt v. Philadelphia, 15 W. N. 214; Fleming v. Lock Haven, 15 W. N. 216, and others of the same class, where the danger was either patent, or the plaintiff had knowledge or warning of it beforehand. In the present case, we are unable to say that the circumstances proved were such as to establish any fixed standard of prudent conduct from which Mrs. Carr departed. It was not shown that she was informed of the condition of this particular street. All of the streets, as she testifies, were covered with deep snow; and, while the special ruts or gutters, caused by the digging out of the snow and ice down to the car "tracks, were visible to her, it is not clear that they did or necessarily ought to have conveyed to her mind the idea of danger. She saw other teams using the street; her own drove a considerable distance in it before the accident, and she may have thought, as her driver Adams says he did, that “ there were other teams turned out, and we thought we could turn out just as well.” She was a woman, not shown to have any special knowledge [144] of driving or horses or sleighs, who had trusted herself to the guidance of her brother-in-law and his friend; and we cannot say, as matter of law, that the danger was so apparent or so .serious that she was called upon to exercise her own judgment in opposition to theirs. All these matters are for the jury to decide, upon their view of reasonable care and prudent conduct, under the circumstances shown by the evidence. The question of the negligence of the defendant is not raised -on this appeal, and, of course, we have not considered it. Judgment reversed, and venire de novo awarded.