Robb v. Connellsville Bor.

• Citation: 137 Pa. 42
• Parties: MARY ROBB ET AL. v. CONNELLSVILLE. BOR.
• Decision Date: 06 October 1890
• Court: Pennsylvania Supreme Court

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137 Pa. 42 MARY ROBB ET AL. v. CONNELLSVILLE. BOR. Supreme Court of Pennsylvania. Argued May 14, 1890. Decided October 6, 1890.

Before STERRETT, GREEN, WILLIAMS, McCOLLUM and MITCHELL, JJ.

APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS OF FAYETTE COUNTY.

No. 36 July Term 1890, Sup. Ct.; court below, No. 288 March Term 1886, C. P.

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Mr. Edward Campbell, for the appellants:

1. A traveler has a right to presume that a highway in constant

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use is reasonably safe for ordinary travel, and is not bound to look far ahead to avoid defects which ought not to exist: 2 Shearman & Redf. on Negl., § 375; Thompson v. Bridgewater, 7 Pick. 188; nor to keep his eyes constantly on the pavement: Woods v. Boston, 121 Mass. 337. The question whether the plaintiff was guilty of contributory negligence, was for the jury: West Chester R. Co. v. McElwee, 67 Pa. 311; Longenecker v. Railroad Co., 105 Pa. 328; Philadelphia v. Smith, 23 W. N. 242; Delaware R. Co. v. Jones, 128 Pa. 308; Turnpike Co. v. Railroad Co., 54 Pa. 345; Phila. etc. R. Co. v. Stinger, 78 Pa. 219; Schum v. Railroad Co., 107 Pa. 8; Lee v. Woolsey, 109 Pa. 124; Penna. R. Co. v. Coon, 111 Pa. 430; Taylor v. Canal Co., 113 Pa. 162; Neslie v. Railway Co., 113 Pa. 300.

2. That evidence of similar accidents to other persons, at the same place, caused by the same defect, is admissible, has been repeatedly decided: District of Columbia v. Armes, 107 U. S. 519; Quinlan v. Utica, 11 Hun 217; s. c. 74 N. Y. 603; Chicago v. Powers, 42 Ill. 168 (89 Am. Dec. 418); Augusta v. Hafers, 61 Ga. 48 (34 Am. Rep. 95); House v. Metcalf, 27 Conn. 630; Calkins v. Hartford, 33 Conn. 57; Darling v. Westmoreland, 52 N. H. 401 (13 Am. Rep. 55); Hill v. Railroad Co., 55 Me. 439; Kent v. Lincoln, 32 Vt. 591; Delphi v. Lowery, 74 Ind. 520 (39 Am. Rep. 98). The testimony excluded was proper to show that the walk, as tested by use, was dangerous and unsafe; it did not present a new issue upon which the defendant was not required to be prepared: Topeka v. Sherwood, 38 Alb. L. J. 143; Patterson's Ry. Acc. Law, 421; Gordon v. Railroad Co., 58 N. H. 396; Morse v. Railroad Co., 30 Minn. 465; 11 Am. & Eng. R. Cases, 168.

Mr. R. E. Umbel (with him Mr. A. D. Boyd), for the appellee.

Counsel cited: As to evidence of injuries to other persons: 1 Greenl. Ev., § 52; Lincoln v. Manufacturing Co., 9 Allen 181; Hawks v. Charlemont, 110 Mass. 110; Cutter v. Howe, 122 Mass. 541. As to contributory negligence: Beach on Cont. Negl...