Lynch v. City of Erie

• Decision Date: 03 October 1892
• Docket Number: 434
• Parties: Lynch, Appellant, v. Erie City
• Court: Pennsylvania Supreme Court

25 A. 43

151 Pa. 380

Lynch, Appellant, v. Erie City

No. 434

Supreme Court of Pennsylvania

October 3, 1892

Argued April 27, 1892

Appeal, No. 434, Jan. T., 1892, by plaintiff, Michael Lynch from judgment of C.P. Erie Co., Sept. T., 1890, No. 47, on verdict for defendant.

The facts appear by the opinion of the Supreme Court.

The court below, MORRISON, J., of the 48th judicial district specially presiding, charged, that plaintiff was guilty of contributory negligence, and gave binding instructions for defendant.

Errors assigned were (1, 2) instructions, quoting them.

The judgment is therefore affirmed.

T. A. Lamb and E. A. Walling, for appellant, cited Forker v. Sandy Lake, 130 Pa. 123; Nanticoke v. Warne, 106 Pa. 373; Millcreek Tp. v. Perry, 20 W.N.C. 359; Kohler v. R.R. Co., 135 Pa. 346; Bridge Co. v. Bevard, 11 A. 575; Easton v. Neff, 102 Pa. 474.

Jos. P. O'Brien, city solicitor, for appellee, cited Altoona v. Lotz, 114 Pa. 238.

Before PAXSON, C.J., STERRETT, WILLIAMS, McCOLLUM and HEYDRICK, JJ.

OPINION

MR. HEYDRICK, JUSTICE:

It was incumbent upon the plaintiff to establish a prima facie cause of action resulting exclusively from the negligence of the defendant, or, in other words, a case clear of contributory negligence upon his own part, before the defendant need answer at all. If, being a witness in his own behalf, his testimony upon cross-examination disclosed such contributory negligence, it cannot be said that he had established such prima facie cause of action, though his examination in chief and other parts of his cross-examination filled the full measure of proof required by the strictest rule. By this it is not meant to say that a party who has made a slip on the witness stand may not explain it. In such case the statement against himself and the explanation may properly go together before the jury. But where he has clearly contradicted himself upon a vital point, and offered no explanation, the least that can be said is that he has not established the essential fact. In the light of these obvious principles it will be seen upon examination of the plaintiff's own testimony that the learned court below properly gave binding instructions to the jury to return a verdict for the defendant.

The injuries for which the plaintiff seeks to recover damages were the result of a fall caused by a defect in the sidewalk on the south side of Second street in the city of Erie, on a dark night in February, 1888. He had resided twenty-four years within two squares of the place of the accident and had been in the employ of the city during twelve years of that time as street foreman of the ward in which the place in question was situated. He testified that he knew at the time...