Devlin v. Beacon Light Co.

• Decision Date: 19 July 1899
• Docket Number: 383
• Citation: 192 Pa. 188,43 A. 962
• Parties: Sarah K. Devlin, a minor, by her next friend, James K. Devlin, and the said James K. Devlin and Sarah Devlin, his wife, Appellants, v. Beacon Light Company
• Court: Pennsylvania Supreme Court

43 A. 962

192 Pa. 188

Sarah K. Devlin, a minor, by her next friend, James K. Devlin, and the said James K. Devlin and Sarah Devlin, his wife, Appellants, v. Beacon Light Company

No. 383

Supreme Court of Pennsylvania

July 19, 1899

Argued February 7, 1899

Appeal, No. 383, Jan. T., 1898, by plaintiffs, from order of C.P. Delaware Co., Dec. T., 1897, No. 25, refusing to take off nonsuit. Reversed.

Trespass for personal injuries. Before HEMPHILL, P.J.

At the trial it appeared that about 8 o'clock in the morning of February 9, 1898, plaintiff was injured at Third and Market streets, a much traveled part of the city of Chester, by stepping upon a live electric light wire which had been left on the pavement without guard or warning by defendant's workmen. At the time of the accident plaintiff was stepping from the crossing upon the pavement. The wire was not over three eighths of an inch in diameter. Plaintiff described the accident as follows:

"I went over to Mr. Broomall's corner and from Mr Broomall's corner to the corner of the express company. I fell in the gutter. I do not know what happened, or did not know until after I arose, and then I found I had tread on a wire. I felt a sensation, a heavy burning sensation going through my whole system, and I had a great deal of pain and nervous shock. I arose the best way I could and looked around me to see what had happened, and I saw there was a wire lying there."

"Q. Are you sure that you did not see it and after you had received the shock forgotten that you had seen it? A. Well when I picked myself up my foot was on the wire. Q. Would you have had any reason in your own mind for not stepping on it if you had seen it, understand me, I mean as a person would step on a rope or anything of that sort to keep it from tripping them, would you have had any objection to doing that with that wire? A. I do not think I would have touched it at all if I had seen it. Q. Why not? A. I would not want to tread on it purposely. Q. What would be your objection to doing it? A. I do not know that it would benefit me to tread on it. Q. Except as persons tread on an obstacle of that kind to keep them from coming up and tripping them. You say you would have objection to doing that? A. If I would have seen it I would not have tread on it of course. Q. You would have been afraid? A. Yes. Q. Why? A. Because I knew that it was an electric wire. Q. That is, you would have thought to be dangerous to tread on it? A. Yes, sir. Q. So that makes you feel sure you did not purposely tread on it? A. I did not tread on it purposely.

The court entered a compulsory nonsuit which it subsequently refused to take off.

Error assigned was refusal to take off nonsuit.

Judgment reversed, motion to take off nonsuit granted, and record remitted with a procedendo.

V. Gilpin Robinson, with him John E. McDonough, for appellant, cited on the question of contributory negligence: Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 314; Allegheny City v. Gilliam, 30 Pittsburg Leg. Jour. 461; Fee v. Columbus Boro., 168 Pa. 382; Potter v. Gas Co., 183 Pa. 590; Schively v. Jenkintown, 180 Pa. 196; McLaughlin v. Traction Co., 175 Pa. 565; Manross v. Oil City, 178 Pa. 276; Haynes v. Raleigh Gas Co., 114 No. Car. 204; Newark Elec. Light & Power Co. v. Ruddy, 48 Central Law Jour. 49.

O. B. Dickinson, for appellee, cited Kelly v. Manayunk Ry. Co., 12 A. 598; Stearns v. Spinning Co., 184 Pa. 519; Kepner v. Traction Co., 183 Pa. 24; Keller v. Hestonville, 149 Pa. 65; Wood v. Diamond Electric Co., 185 Pa. 529; Stack-house v. Vendig & Co., 166 Pa. 588.

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

OPINION

MR. CHIEF JUSTICE STERRETT:

In 1897, two actions of trespass were brought against the defendant company, one by Sarah K. Devlin, by her father and next friend, to recover damages for injuries she sustained by being brought in contact with a live electric light wire which was negligently left upon the sidewalk in the city of Chester by defendant company's employees while they were engaged in readjusting the wires used for public street lighting, and the other, by her parents, James K. and Sarah Devlin, to recover damages sustained by them in consequence of their said daughter's injury. Before trial, these cases were consolidated by order of court under the provisions of the act of May 12, 1897.

On the trial, the joint plaintiffs were nonsuited by the learned trial judge for the reason given by him in the concluding sentence of his charge, viz: "the plaintiff either saw the dangerous wire and tread upon it, or was negligent in failing to see it, and in either case having contributed to the accident, we must direct the entry of a compulsory...