Graham v. Philadelphia

• Decision Date: 14 February 1902
• Docket Number: 160-1901
• Citation: 19 Pa.Super. 292
• Parties: Graham, Appellant, v. Philadelphia
• Court: Pennsylvania Superior Court

19 Pa.Super. 292

Graham, Appellant, v. Philadelphia

No. 160-1901

Superior Court of Pennsylvania

February 14, 1902

Argued October 24, 1901

Appeal by plaintiff, from order of C.P. No. 3, Phila. Co.-1899, No 520, refusing to take off nonsuit in case of Michael Graham v. City of Philadelphia.

Trespass to recover damages for injuries to a horse, harness and wagon.

The facts appear by the opinion of the Superior Court.

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

Error assigned was refusal to take off nonsuit.

Reversed.

Francis Fisher Kane, with him W. Alexander Robinson, D. Stuart Robinson and James M. Beck, for appellant. -- The case was for the jury: Born v. Allegheny, etc., Plank Road Co., 101 Pa. 334; Conyngham v. Erie Electric Motor Co., 15 Pa.Super. 573; Kellow v. Scranton, 195 Pa. 134; Ryan v. Ardis, 190 Pa. 66.

Chester N. Farr, Jr., assistant city solicitor, with him John L Kinsey, city solicitor, for appellee. -- It is idle for one to say that he looked and did not see, when if he had looked he must have seen and should have avoided danger: Carroll v. Penna. R. R. Co., 12 W. N.C. 348; Myers v. B. &amp O. R. R. Co., 150 Pa. 386; Holden v. Penna. R. R. Co., 169 Pa. 1; Hentz v. Somerset Boro., 2 Pa.Super. 225.

Where the condition of the street is such that persons using the same could have seen it, if they had been giving attention to it, they are guilty of contributory negligence in not noticing the same: Dehnhardt v. Philadelphia, 15 W. N.C. 214; Philadelphia v. Smith, 23 W. N.C. 242; Barnes v. Sowden, 119 Pa. 53; Buzby v. Phila. Traction Co., 126 Pa. 559; Dickson v. Hollister, 123 Pa. 421; Sumis v. Phila. Traction Co., 181 Pa. 268; Shallcross v. Phila., 187 Pa. 143.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

RICE, J.

This was an action of trespass brought to recover damages for injuries to the plaintiff's horse, harness and wagon caused by the horse stepping into a hole in the highway. The plaintiff's son, aged eighteen years, was driving the horse at a jog trot northward on the right-hand side of Twelfth street in the city of Philadelphia. He had crossed the railroad tracks on Washington avenue, an intersecting street, and at a point distant a length and a half of the horse and wagon from the Washington avenue curb the horse stepped into the hole. The driver testified, that he was driving carefully, holding a tight rein on the horse, that he was looking " right ahead," that he did not see the hole, or anything to indicate to him that there was a hole, and that he did not know of its existence. He lived in another part of the city but admitted that he had driven in the street before and had passed the place " every once in a while." Another witness testified that the hole had been there four or five weeks. " Then it was filled with cinders. Then it was washed out again and the asphalt was undermined about four feet, and the water was continually flowing at the time of the accident. . . . The hole, I judge, was eight or ten inches; that is, the asphalt, and it was all undermined, like a cake on top." Another witness testified: " The hole seemed to me to be about a foot across and underneath it when I looked there were cinders, and the cinders seemed to be washed out from underneath the asphalt, making a pretty good sized hole underneath, but on top it was not very large." Another witness testified: " The hole the horse went into had been filled with cinders on top of it and cinders underneath. The water was running through the cinders underneath when I looked down the hole after we got the horse out." In another part of his testimony he said: " It was only a small hole in the asphalt, but underneath it was all hollowed out like a balloon." We quote further from the testimony of the driver:"

Q. You could see a hole, couldn't you, a foot wide?

A. The hole must have had cinders in it, so you wouldn't notice it. There were cinders all around it. . . . There was nothing to call my attention that there was a hole there.

Q. Do you know there was a hole there?

A. There was a hole there, but it might have been filled up with cinders and you never know it.

Q. You noticed those cinders when you drove by there before?

A. I don't remember noticing any cinders.

Q. Don't you look where you are driving usually?

A. I look where I am driving, but a little hole like that you would never notice, with cinders laid across it."

" That the reasonable care which the law exacts of all persons in whatever they do involving the risk of injury requires travelers, even on the footways of public streets, to look where they are going, is a proposition so plain that it is not often called for adjudication:" Robb v Connellsville Borough, 137 Pa. 42. This statement of the law has been cited with approval in many later cases, and it is as applicable to the driver of a vehicle as to pedestrians. The question for our consideration is, whether the evidence so clearly established the negligence of the driver in this regard as to warrant the court in determining it as a matter of law. As already shown the driver testified that he was driving at a moderate gait, with a tight rein, and that he was looking straight ahead and did not see the hole. To sustain the judgment of nonsuit we must declare as matter of law that he omitted some other duty, which is not claimed, or as matter of fact that this testimony is incredible. The argument in support of the judgment is based on the latter ground. We recognize the principle that it...