Bruch v. City of Philadelphia

• Citation: 37 A. 818,181 Pa. 588
• Decision Date: 15 July 1897
• Docket Number: 570
• Parties: Thomas Bruch, Appellant, v. City of Philadelphia
• Court: United States State Supreme Court of Pennsylvania

37 A. 818

181 Pa. 588

Thomas Bruch, Appellant, v. City of Philadelphia

No. 570

Supreme Court of Pennsylvania

July 15, 1897

Argued January 18, 1897

Appeal, No. 570, Jan. T., 1896, by plaintiff, from judgment of C.P. No. 3, Phila. Co., Sept. T., 1894, No. 80, for defendant on report of referee. Reversed.

Trespass for personal injuries. Before McMICHAEL, J.

Exceptions to report of referee.

The facts appear by the opinion of the Supreme Court.

Errors assigned were in sustaining exceptions to referee's report.

The authorities cited by appellee are unquestionably the law, but they do not touch the question on which the case turns. No precedent can control a jury or referee in determining what a witness means when he uses language warranting distinct and opposite inferences. They must determine his meaning, not only from his words, but from his manner and all the surrounding circumstances, and find whether he was careful or careless. Therefore, the judgment is reversed, the finding of fact by the referee adopted, and judgment is now entered for plaintiff on his report.

Jos. R Embery, with him William Embery, for appellant. -- The gist of the error of the court is that no question of contributory negligence was raised by the plaintiff's testimony, and if there was some evidence it was for the referee Merriman v. Borough, 158 Pa. 78; Ely v. Ry., 158 Pa. 233; Glase v. Philadelphia, 169 Pa. 492.

The act of May 14, 1874, under which the reference was made, clothes the referee with the same authority as a judge trying a case without a jury under the act of April 22, 1874: City v. Linnard, 97 Pa. 249; Act of May 14, 1874, P.L. 166.

The conclusion of a judge under the act of April 22, 1874, on the facts of the case, must be regarded in the same manner as the verdict of a jury: Gonser v. Smith, 115 Pa. 460; Bradlee & Co. v. Whitney & Kemmerer, 108 Pa. 362; R.R. v. Moyer, 125 Pa. 510.

Alex. Simpson, Jr., with him Leonard Finletter, for appellee. -- If the testimony was capable of the interpretation attempted to be put upon it by the referee, and relied on by appellant's counsel, it would come within the well-established rule of Carroll v. R.R., 2 Penny. 159; Bell v. R.R., 122 Pa. 58; Cauley v. R.R., 98 Pa. 498.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

On the night of April 12, 1894, the plaintiff, while walking on the pavement of west side of Kensington avenue, in Philadelphia, on his way to his home, stepped into a hole, fell, and was seriously injured. The hole was about four feet long, narrow, irregular or crescent-shaped, and had been in the pavement for three months. Plaintiff was fifty-four years of age, with sense of sight unimpaired. There were electric lights at Clearfield street and Indiana avenue, both eighty to one hundred yards distant from where he fell; there was also a lamp on the same side of the street about forty-four yards off, but it did not clearly appear this was lighted that night.

A witness who resided on the same side of the street near the place of accident, testified, that on walking in the direction plaintiff was going, the electric light was under an awning, and so dazzled the eyes of the traveler that he could not see clearly in front of him, and especially could not see the pavement. Plaintiff had never walked on that side of the street before.

He alleged his injury was caused by the city's negligence in not maintaining a reasonably safe sidewalk, and brought suit for damages. The case was referred to George de B. Meyers, Esq., under act of 1874, to find the facts and apply the law, who, after hearing all the evidence, found:

1. The negligence of the city caused the accident. 2. The evidence did not show contributory negligence on part of plaintiff. 3. That plaintiff had sustained damages to the amount of $2,750, and so reported to the court.

On exceptions to the report the court approved the finding of the referee as to negligence of city, but dissented from that which declared the plaintiff free from contributory negligence, and accordingly set aside the report and entered judgment for the city. From that judgment, plaintiff appeals.

The referee was appointed under act of May 14, 1874. We have held in City v. Linnard, 97 Pa. 249, that his power is the same to all intents and purposes, under such appointment, as that of a judge, who, under the act of April 22, 1874, by agreement finds the facts and determines the law of the issue. The referee's findings of fact, then, are as conclusive as the verdict of a jury. If, under the evidence of plaintiff in this case before a jury, the trial judge would have been bound to direct a compulsory nonsuit, or to peremptorily direct the jury to find for defendant, then the court below properly entered judgment for defendant; but, if the question of contributory negligence would have been for the jury, then the court committed error in setting aside the report: Bradlee & Co. v. Whitney & Kemmerer, 108 Pa. 362.

The learned judge of the court below was of opinion plaintiff's own evidence disclosed a case of contributory negligence, and for that reason set aside the report. The evidence on which the court found one way and the...