Beatty v. Gilmore

• Decision Date: 03 July 1851
• Parties: Beatty <I>versus</I> Gilmore.
• Court: Pennsylvania Supreme Court

Page 463

16 Pa. 463

Beatty versus Gilmore.

Supreme Court of Pennsylvania.

July 3, 1851.

ERROR to the Common Pleas of Dauphin county.

COPYRIGHT MATERIAL OMITTED

The case was argued by McCormick, for Beatty, plaintiff in error.

Fisher and Kunkle, for defendant.

The opinion of the court, filed July 3, was delivered by BELL, J.

In Butterfield v. Forrester, 11 East 60, it was laid down that to support an action like the present, two things must concur — an obstruction or hindrance in the road or highway by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. In that case, the plaintiff had been guilty of actual misconduct in riding furiously through a street of a populous town, and it has been thought this circumstance is to be considered in every practical application of the rule there ascertained. On hearing the motion for a new trial, Mr. Justice BAILEY, before whom the cause had been tried at Nisi Prius, remarked, "The plaintiff was proved to be riding as fast as his horse could go, and this was through the streets of Derby. If he had used ordinary care he must have seen the obstruction, so that the accident appeared to happen entirely from his own fault." By way of illustration, Lord ELLENBOROUGH said, "In cases of persons riding upon what is considered the wrong side of the road, that would not authorize another purposely to ride up against them. One person being in fault will not dispense with another's using ordinary care for himself." Of this illustration it was judiciously observed, that of the propriety of one man's abstaining from riding purposely against several others, little doubt can be entertained. What shall be deemed ordinary care to avoid a danger, the existence of which there is no reason to anticipate, does not appear to be equally clear; and it has been thought that the principle upon which the decision proceeded was, that want of care in respect of the probability of injury to others, from riding fast through a public street, is tantamount to a want of care in avoiding that which might be injurious to the party himself, for had he been riding over his own field, at the rate of twenty miles an hour, it would, probably, not be contended he was chargeable with want of care; and had his horse been killed by falling into a pit wrongfully dug there by a stranger, it could scarcely be doubted the latter would be responsible for the injury: Note to Burgess v. Gray, 50 E. C. L. 580, note a. In subsequent cases, where Butterfield v. Forrester was brought to view, it was held that although there may have been negligence on the part of plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequence of the defendant's negligence, he is entitled to recover; if by ordinary care he might have avoided, then he is the author of his own wrong: Bridge v. The Grand Junction Railroad Co., 3 Mees. & W. 246; Davis v. Mann, 10 Mees. & Welsby. What shall be esteemed ordinary care, must of necessity, depend upon the peculiarity of each case. Hence, it was well observed in Robinson v. Cone, Am. Law Jour. for January 1851, 313, in the Supreme Court of Vermont, that, though Butterfield v. Forrester has been considered as furnishing the rule for charging juries in road cases, and, as a general rule, is unobjectionable, yet, in its application to the almost endless variety of incidents attending injuries of this character, perplexing doubts will spring up which the general formula is wholly insufficient to remove. The instances in which it has been generally applied are of accidents occurring during the continuance of daylight, where usually the exercise of ordinary prudential care is sufficient to avoid injury, and witnesses are commonly found to testify of the circumstances attending the catastrophe. But where, in the darkness and solitude of the night, one suffers grievous injury from the culpable commission or omission of another, the carelessness which would excuse, ought certainly to be of a very gross character, made apparent by direct or circumstantial proof. This reasonable principle seems to have been present to the mind of Lord ELLENBOROUGH, when determining Weld v. The Gas Light Co., 2 E. C. L. 350. Speaking of the trenches opened by the defendants to lay gas-pipes, he said that, though authorized to open the streets for this purpose, they were bound to execute it as innocently as possible, even in the daytime, and, in the night-time, to take especial precaution that no one shall receive an injury.

In the case before us, the culpable neglect of the defendant in suffering...