Dickson v. Hollister

• Decision Date: 07 January 1889
• Parties: DICKSON et ux. v. HOLLISTER.
• Court: Pennsylvania Supreme Court

16 A. 484
123 Pa.St. 421

DICKSON et ux.
v.
HOLLISTER.

Supreme Court of Pennsylvania.

January 7, 1889.

16 A. 485

Error to court of common pleas, Allegheny county; E. H. STOWE, Judge.

Trespass on the case by Alfred Hollister against John S. Dickson and Sarah Dickson, his wife, for injuries received by falling into a coal-hole in the sidewalk in front of the property of defendants, in the city of Pittsburgh. There was a verdict for plaintiff for $1,350, and judgment thereon. Defendants bring error, and assign three specific portions of the oral charge of the court, and the refusal to give the third and fifth points submitted by defendants. The portions of the charge objected to are as follows, viz.: "(1) There is no evidence to indicate, nor is it pretended on the part of the defendant, that the plaintiff was guilty of any negligence himself. There is some sort of an intimation, and that is indicated only by the testimony of little Richard Dickson, that the plaintiff may have been intoxicated at the time; but even if he had been drinking beer, or liquor, or even if he were intoxicated, if that drinking or intoxication did not tend to bring about the accident,—did not tend to loosening up of this grating, or cause the plaintiff to step upon it, when he otherwise ought to have stepped somewhere else, as the evidence fails entirely to indicate,—it don't make any difference. The injury he received would have no connection with his being intoxicated, even if he were, which, it seems to me, the evidence entirely fails to show, and therefore there is nothing which would justify the jury in finding he was guilty of what we call 'contributory negligence.' (2) He then went to the gentleman who fixed it, Mr. Farrell, I believe, and had these flanges or ear-pieces put on. Farrell says they were not at all necessary; that the grating was sufficient before. In that he is probably mistaken, because the evidence of Johnson himself shows it was getting out of order. But at any rate they were put on as a matter of extra precaution, and Farrell says, in his opinion, it was perfectly safe. Now, if they did make the grating safe in so far as ordinary skill, prudence, and foresight could anticipate any possible or probable damage arising from it, that is all the defendant was bound to do, and he is not liable for any accident of this kind; but because he went to a man he thought skillful, and engaged him to do the work, it don't necessarily follow that he is not liable. It...