Mattimore v. City of Erie

Opinion, Me. Justice Green: We are obliged to sustain the eighth assignment of error. The learned court below, in the general charge to the jury on the subject of contributory negligence of the plaintiff, said: “It is a principle of law that, although the defendant in an action of this kind may have been guilty of negligence, yet if the plaintiff himself was guilty of any negligence which materially contributed to the happening of the injury, then he cannot recover, no matter how negligent the defendant may have been.” This is in direct conflict with at least two of our recent cases: Monongahela City v. Fischer, 111 Pa. 9; Oil City Supply Co. v. Boundy, 122 Pa. 449. In both these it was held that any limitation upon the effect of any degree of contributory negligence of the plaintiff, as defeating his right of recovery, was vicious, and could not be tolerated. In the first of them the present Chief Justice said: “But if we substitute the word ‘ material ’ for the word ‘ any,’ we practically abolish the rule, for a jury can always find a way to avoid it. The rule itself is valuable, and rests upon sound principles. We are not disposed to allow it to be undermined.” It is contended, however, that the law was correctly stated in the subsequent part of the charge, and therefore the jury was not misled, or may not have been misled by the erroneous instruction. Upon examining the charge, however, we find that the [24] only portion oí it in which the legal principle is stated is the part above quoted, and there the error distinctly appears in the statement of the principle itself and as a part of it. There is no qualification of it anywhere else in the charge. What follows is merely by way of illustration, as applied to the facts óf the present case. The learned judge did tell the jury that if they found that the boy was playing with the wheel, and attempting to move it, and thereby caused it to fall, he would be guilty of contributory negligence and could not recover. But under the charge as it then stood, it would be quite possible for the jury to find that, although the boy was playing with the wheel, his action did not materially contribute to the injury, and therefore they could render a verdict in his favor. There was evidence that the wheel was very insecurely placed in its position, and tilted over upon the least touching of it; and the jury may have very naturally thought its insecure position was more material in producing its fall than the boy’s playing with it. It is this very opportunity to misapply the law, if degrees of contributory negligence are tolerated, which requires from the court a rigid adherence to the rule which forbids a recovery by a plaintiff in an action for negligence, who has contributed in any degree to his own injury. For some unexplained reason, the present action was not brought against the parties who were guilty of the actual negligence which caused the plaintiff’s injury. It was brought against the city instead of the Stearns Manufacturing Company. The conditions of liability are very different in the case of the city from those which are controlling in the case of the company. The liability of the latter depends only upon the fact of their negligence resulting in the plaintiff’s injury. But the liability of the city is not a necessary consequence of the mere neglect of the company. Something more is required to be proved in the action .against the city than the fact that the company was guilty of the negligence which resulted in the plaintiff’s injury. Other elements enter into the inquiry as to the responsibility of the city. The city had nothing to do with the placing of the. wheel which fell upon the plaintiff, and therefore cannot be charged with the consequences which resulted from its negligent placing. The wheel was not standing in any part of the public [25] highway; and therefore, the mere fact of its being where it was did not contribute to an obstruction to the travel on either the road or the sidewalk. While it must be conceded that a municipality is chargeable with the consequences of the presence of an actual obstruction in the highway, as soon, at least, as it can be said to have knowledge of the obstruction, there is scarcely a parallelism between the conditions of liability in such circumstances, and those which are required in such a case as this. Of course, if this wheel had been upon private grounds, it will not be pretended that the city would be responsible, even though it stood veiy near to the highwajn Being upon ground which, though public, was not in use as a highway, it certainly does not follow, by any necessary inference, that the city would be liable upon the principle that it is an obstruction to the highway. It is plain that, as the injury in question was not the result of the mere presence of the wheel on the lawn, the city is not liable because of such presence only. We think it follows, hence, that the city is not liable for the negligence of placing it, unless it had at least distinct notice of that particular negligence in the placing of either this wheel or of other wheels. There was not a particle of evidence of any such notice as this in the case, either as to this wheel or others. On the contrary, there was ample proof that no accident of this kind had ever occurred from the placing of any of the' machinery, and there was no plausible or possible ground of inference that an accident would happen simply because of the manner in which the machinery was placed upon the lawn. If, then, the city’s liability must be worked out as the consequence of a disregarded notice, such notice must have been directed to the particular negligence which produced the injury, and of that kind of notice there was no proof. The mere fact of the presence of the machinery might give rise to a duty to remove it, but that is not the dutjr whose violation occasioned the injury, and it is inconsequential as a source of legal liability. The petition of citizens, presented to city councils, during the year before the accident, was rather a remonstrance against the presence of the whole body of machinery' on the lawn, as being an unsightly spectacle and injurious to the rights of property owners, than as a source of danger to individuals. It was charged in the petition that the storage of [26] such a great quantity of machinery so near the road, would tend to frighten horses and cause runaways, but there was no specific notice of any special negligence in the manner of placing particular articles. We are of opinion, therefore, that the facts necessary to give rise to the liability of the city for this particular injury do not appear in the testimony; and, as there was no proof that the wheel that caused the injury had been placed in its position any considerable length of time before the accident, we think the first, second, fourth, sixth, g,nd seventh assignments are sustained. We do not sustain tire fifth and ninth assignments, as there was some evidence of a permanent loss of earning power to some extent, and its effect was for the jury. J udgment reversed.