Heiss v. Lancaster

• Decision Date: 04 June 1902
• Docket Number: 311
• Citation: 52 A. 201,203 Pa. 260
• Parties: Heiss, Appellant, v. Lancaster
• Court: Pennsylvania Supreme Court

52 A. 201

203 Pa. 260

Heiss, Appellant, v. Lancaster

No. 311

Supreme Court of Pennsylvania

June 4, 1902

Argued May 19, 1902

Appeal, No. 311, Jan. T., 1901, by plaintiff, from judgment of C.P. Lancaster Co., Aug. T., 1898, No. 4, on verdict for defendant in case of Levius Heiss v. City of Lancaster. Affirmed.

Trespass to recover damages for personal injuries. Before LANDIS, J.

At the trial it appeared that on August 9, 1897, at five o'clock in the morning, plaintiff slipped and fell in a deep open gutter between a street crossing and the curbstone. The court admitted, under exception on a cross-examination of two of plaintiff's witnesses, testimony to the effect that many of the gutters and street crossings in the city of Lancaster are uncovered. [1, 2]

The court charged in part as follows:

[A city is not bound to keep its highways in the condition of absolute safety, nor is it obliged to cover its crossings at all places, if it does not see fit to do so. This, like all other city improvements, may be done or not, as the municipal authorities see proper, and the absence, therefore, of a crossing at the place of the accident was not, of itself negligence in the corporation.]

[A burden rests upon the plaintiff, even though the city was negligent. If he could have seen the defect which was here alleged had he looked, and he did not look, he cannot recover in this action. He must make out a case of negligence on the part of the city, free from contributory negligence on his own part. Has he done so?]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3, 4) above instructions, quoting them.

Judgment affirmed.

W. U. Hensel, with him J. W. Brown, for appellant. -- Persons walking on the pavements of a large city have the right to assume that the pavements are reasonably safe: Bruch v. Philadelphia, 181 Pa. 588; Duncan v. Philadelphia, 173 Pa. 550; Ringrose v. Bloomsburg Boro., 167 Pa. 621; Vanderslice v. Philadelphia, 103 Pa. 102; Aiken v. Philadelphia, 9 Pa. Superior Ct. 502; McClosky v. Dubois Borough, 4 Pa.Super. 181.

While it is true that if the plaintiff's case shows contributory negligence he cannot recover, it is not the law that a plaintiff must "prove himself" clear of it. There is no "burden" of this kind laid upon him. He is not bound to "make out" both the negligence of the city and that he was not guilty of contributory negligence.

A. B. Hassler, Charles R. Kline and E. M. Gilbert, for appellee, were not heard.

Before MITCHELL, DEAN, FELL, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE MITCHELL:

The first and second assignments of error are to the admission of evidence that other gutter crossings in the city were in a similar condition to the one where the accident occurred. The evidence, while not weighty, was competent. A general or common method of performance of a common duty may nevertheless be negligent, but the natural inference is to the contrary. Thus the usual and common practice of travelers to stop at a certain place before crossing a railroad is evidence that it is a proper place to stop. The witnesses in the present case had given testimony tending to show that the crossing was dangerous, and the testimony that there were many other crossings in the same condition had some bearing...