Mellor v. Burgess & Town Council of Bridgeport

• Decision Date: 23 May 1899
• Citation: Mellor v. Burgess & Town Council of Bridgeport, 43 A. 365, 191 Pa. 562 (Pa. 1899)
• Docket Number: 296
• Court: Pennsylvania Supreme Court
• Parties: Samuel S. Mellor, Appellant, v. The Burgess and Town Council of Bridgeport

191 Pa. 562

Samuel S. Mellor, Appellant,

v. The Burgess and Town Council of Bridgeport.

Supreme Court of Pennsylvania.

January 30, 1899.

May 23, 1899.

Argued Jan. 30, 1899.

Appeal, No. 296, Jan. T., 1898, by plaintiff, from order of C. P. Montgomery Co., March T., 1897, No. 56, refusing to take off nonsuit.

Before STERRETT, C. J., McCOLLUM, MITCHELL, DEAN and FELL, JJ. Reversed.

N. H. Larzelere, with him M. M. Gibson, for appellant.—The case was for the jury: Stokes v. Ralpho Twp., 187 Pa. 333; Easton v. Neff, 102 Pa. 474; City of Altoona v. Lotz, 114 Pa. 238; Chilton v. Carbondale, 160 Pa. 463; Gates v. Penna. R. Co., 154 Pa. 566; Maynes v. Atwater, 88 Pa. 496; McFarland v. Ins. Co., 134 Pa 590; Humphreys v. Armstrong County, 56 Pa. 204; Lower Macungie Twp. v. Merkhoffer, 71 Pa. 276; Hey v. Philadelphia, 81 Pa. 44; Borough of Pittston v. Hart, 89 Pa. 389; Trexler v. Greenwich Twp., 168 Pa. 214; Jackson Twp. v. Wagner, 127 Pa. 184; Horstick v. Dunkle, 145 Pa. 220; Kitchen v. Union Twp., 171 Pa. 145; Scott Twp. v. Montgomery, 95 Pa. 444; Burrell Twp. v. Uncapher, 117 Pa. 353; Township of Plymouth v. Graver, 125 Pa. 24; Corbalis v. Newberry Twp., 132 Pa. 9; Dalton v. Upper Tyrone Township, 137 Pa. 18; Worrilow v. Chichester Twp., 149 Pa. 40; Merriman v. Phillipsburg, 158 Pa. 78; Finnegan v. Foster Twp., 163 Pa. 135; Sturgis v. Kountz, 165 Pa. 358; Trexler v. Greenwich Twp., 168 Pa. 214; Kitchen v. Union Township, 171 Pa. 145; Yoders v. Amwell Township, 172 Pa. 447; Bitting v. Maxatawny Twp., 177 Pa. 213; Francis v. Franklin Twp., 179 Pa. 195; Pittsburg v. Grier, 22 Pa. 54; Erie v. Schwingle, 22 Pa. 384; Humphreys v. Armstrong County, 56 Pa. 204; Pittston v. Hart, 89 Pa. 389.

James Boyd and Edw. F. Kane, for appellee.—The appellant was clearly guilty of contributory negligence and, therefore, the learned court below rightly granted a nonsuit. He had the choice of two ways, the one safe, the other unsafe and dangerous. He chose the latter and must now abide by the consequences: Smith v. City, 178 Pa. 301; Haven v. Bridge Co., 151 Pa. 620; Lynch v. Erie City, 151 Pa. 381; Brendlinger v. Twp., 148 Pa. 95; Hill v. Twp., 146 Pa. 11; Forks Twp. v. King, 84 Pa. 233; West Mahanoy Twp. v. Watson, 8 Cent. Rep. 543.

OPINION BY MR. CHIEF JUSTICE STERRETT, May 23, 1899:

This appeal is from the refusal of the learned court below to take off the nonsuit which was ordered at the trial on the ground that the plaintiff was guilty of contributory negligence.

The only question presented here is, whether the evidence was such as required submission to the jury of the questions of negligence and contributory negligence. As to the former, there is no room for any doubt. If the testimony on that subject is true no jury could hesitate to find that the defendant borough was guilty of negligence in leaving the steep embankment down to the railroad tracks unguarded, etc. As to the alleged contributory negligence of the plaintiff, while there is perhaps sufficient testimony to justify submission of the question to a jury, there are no fact or facts either admitted or established by undisputed evidence that would justify a trial judge in declaring, as matter of law, that he was guilty of contributory negligence, and therefore could not recover.

Without unnecessarily consuming time, by reviewing or summarizing the evidence and presenting it here, the foregoing are the conclusions we have reached after a careful consideration of the record. This case was clearly for the jury, and it should have been submitted to them with proper instructions as to the law applicable to the facts which the evidence tended to prove. As to the law of the case, there cannot be any trouble. A person who uses a street or highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination, is not necessarily guilty of negligence because he does not take the safer route. It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous, and therefore avoid it, that a trial court can say, as matter of law, that the person using the more dangerous route is guilty of contributory negligence: Stokes v. Ralpho Township, 187 Pa. 333. If the alternative route has dangers of its own, as was the fact in this case, and the dangers of the route actually taken are not so great and obvious as to deter the general public and ordinarily prudent and careful people from using it, the question of the contributory...