Dickson v. Hollister

• Decision Date: 07 January 1889
• Docket Number: 32
• Citation: 16 A. 484,123 Pa. 421
• Parties: J. S. DICKSON ET AL. v. ALFRED HOLLISTER
• Court: Pennsylvania Supreme Court

16 A. 484

123 Pa. 421

J. S. DICKSON ET AL. v. ALFRED HOLLISTER

No. 32

Supreme Court of Pennsylvania

January 7, 1889

Argued November 1, 1888

ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

No. 32 October Term 1888, Sup. Ct.; court below, No. 407 March Term 1887, C.P. No. 1.

On February 7, 1887, a summons in case was served in an action by Alfred Hollister against Dr. John S. Dickson and Sarah Dickson, his wife, to recover damages for personal injuries received through the alleged negligence of the defendants. Issue.

At the trial on November 17, 1887, the facts appearing in evidence were substantially as follows:

On April 10, 1886, the plaintiff, a resident of Utica, New York was in Pittsburgh, as a traveling salesman for a drug house in New York city, and in the afternoon of that day when passing in front of property belonging to the defendants on Ninth street, in the pursuit of his business, he stepped upon the grating which covered a coal-hole in the foot way. The grating was displaced by his step upon it, and turned or slipped away, whereby the plaintiff fell into the coal-hole to his arm-pits, receiving a severe injury upon his right leg below the knee. He was confined to his bed at the St. Charles Hotel for two months, under treatment, and was off duty for still another month. Erysipelas supervened during his confinement. His testimony, as to the occurrence resulting in his injury sufficiently appears in the charge of the court below and in the opinion of this court. Dr. Orr, his physician, testified that the erysipelas set in on the sixth or seventh day; that erysipelas frequently though not usually followed wounds, but if there had been no wound there would have been no erysipelas. Other witnesses were called by the plaintiff to prove his injuries, the resultant suffering and the expenses incurred, when he rested.

The defendants called Thomas Johnson, an employee of the defendants who had charge of the building in front of which the injury occurred, and who testified that the coal-hole was not in use at the time, and he had secured the grating in its place by a strong wire through the bars fastened to piece of wood; "When I discovered it worked loose so often, I spoke to the Doctor about having it fixed some other way; he told me to have it fixed as I thought best;" the witness then went to M. J. Farrell a blacksmith and had him fix the grating by putting clamps on it.

M. J Farrell testified that he had been a blacksmith for thirty years; that he went and examined the grating, and though he thought it unnecessary he put on the clamps as a matter of caution. Other witnesses called by the defendants testified that the grating was amply secured.

In his rebuttal, the plaintiff called H. M. Wilson, a civil engineer, who testified to an examination of the coal-hole made by him and that the flanges of the opening had been so worn away by the throwing in of coal that the grating could no longer be made secure.

At the close of the testimony, the court, STOWE, P.J., charged the jury:

The main features of this case are not controverted. I have no doubt you will believe from the evidence that Alfred Hollister, the plaintiff, in going along the pavement on Ninth street, below Penn, in the pursuit of his ordinary and proper business, stepped upon this grating, or at all events where the grating ought to have been; I presume it was partially in place, at least; that it gave way, or slipped out of place, and he fell in the manner he describes, and the little boy, Richard Dickson, also describes, and received the injury he complains of here.

[There is no evidence to indicate, nor is it pretended on the part of the defendants, 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 the 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 does not 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.]

Then the question arises, and it is the whole question apparently in this case, whether the defendants exercised due and proper care in arranging this grating, and seeing if it were made properly originally; that it was kept in proper shape so as to protect persons who had a right to pass along there. Parties who make holes in the pavement know, and are bound to know, must know, as everybody else does, that if the covers are not kept solidly in place, somebody may fall through and get hurt, and they are therefore bound to exercise all reasonable skill, care and prudence with reference to the possible injury that may occur to persons passing along the street. Of course, they are not insurers, but they are bound to exercise such a degree of mechanical skill in arranging the openings as would be ordinarily proper and necessary to protect travelers in view of what might occur. If the defendants did everything in arranging or having arranged, this grating, that was prudent and cautious, in view of these circumstances, they are not liable here, without they have neglected in some way or other to keep the grating in proper order and repair; and when I speak of the defendants I speak of the man Johnson, who had charge of the grating, because the defendants are responsible for the neglect of Johnson. If the defendants put the charge of this grating in the hands of Johnson, gave him authority to look after it, and Johnson neglected his business, and the plaintiff was hurt, it was the same in legal effect as if the defendants had kept charge of it themselves. Johnson says that before he had these flanges put upon it, the grating got out of order from time to time, and his attention was attracted to it, and he had wired it down in some way, but it still kept getting out of shape, so as to indicate it might become dangerous. [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 that 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 defendants are bound to do, and they are not liable for an accident of this kind; but because they sent to a man they thought skilful, and engaged him to do the work, it does not necessarily follow that they are not liable. It must be established reasonably to the satisfaction of the jury, that the man employed did the work in a proper and reasonable way, such as would be proper and sufficient protection under the circumstances. I cannot relieve myself of a duty I owe to the public by employing a man I think is competent to do the work. I must go further, and prove that when he did it, he not only did the work to the best of his judgment, or the best of my judgment, but did it in a way which was reasonable and proper in the judgment of the jury, under all the circumstances of the case.] I may think a man is competent to do a certain piece of work, and he may make me a very bad job, and by his bad work somebody may be injured. I cannot avoid my liability in a case of that kind where I owe a duty to the public, by showing I have exercised the best judgment I had. If that were not the law I would be imposing somebody between me and the public when a duty devolved on me. I am responsible, in a case of that kind, for the neglect, or want of skill, of the party I employ.

The defendants request the court to charge [inter alia]:

3. If the defect in the coal-hole covering as a lawful structure be occult, or the result of a wrongdoer's act, either express notice of the defect must be brought home to the defendants and a failure on their part to heed said notice, or, the defect must be so notorious as to be evident to all pedestrians passing in the immediate neighborhood, before the plaintiff can recover.

Answer: Refused.

4. To entitle the plaintiff to recover, it must be established by affirmative proof that the defendants were guilty of an omission of duty consisting in their not having taken reasonable precautions to render the coal-hole covering safe, upon notice of the defective condition of said coal-hole covering.

Answer: Refused.

5. If the jury believe that the defendants employed a person skilled in repairing iron work, who put on the rim of the coal-hole covering the iron plates or clamps, and who expressed his belief that the presence of the iron clamp would prevent any accident to a person passing along the pavement and stepping upon the coal-hole covering, the defendants took reasonable and proper precautions in that instance, and they cannot be charged with negligence.

Answer: Refused. It is very strong evidence of proper care on part of defendants, but not absolutely conclusive.

The question, after all, is not merely whether defendants thought the grating secure, but...