Strahl v. Philadelphia

• Decision Date: 28 February 1908
• Docket Number: 88-1908
• Citation: Strahl v. Philadelphia, 35 Pa.Super. 301 (Pa. Super. Ct. 1908)
• Parties: Strahl v. Philadelphia, Appellant
• Court: Pennsylvania Superior Court

35 Pa.Super. 301

Strahl v. Philadelphia, Appellant

No. 88-1908

Superior Court of Pennsylvania

February 28, 1908

Argued October 18, 1907

Appeal by defendant, from judgment of C.P. No. 1, Phila. Co.-1906 No. 405, on verdict for plaintiff in case of Charles Strahl v. Philadelphia.

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

The facts are stated in the opinion of the Superior Court.

Error assigned was in refusing binding instructions for defendant.

James Alcorn, assistant city solicitor, with him Harry T. Kingston and J. Howard Gendell, city solicitor, for appellant, cited Boehm v. Bethlehem Borough, 4 Pa.Super. 385; Schwarz v. R. R. Co., 218 Pa. 187; Monongahela City v. Fischer, 111 Pa. 9; Siegler v Mellinger, 203 Pa. 256; Knox v. Ry. Co., 202 Pa. 504; Hodder v. Transit Co., 217 Pa. 110; Clark v. Union Traction Co., 210 Pa. 636; Holden v. Penna. R. R. Co., 169 Pa. 1.

Robert W. Archbald, Jr., with him Franz Ehrlich, Jr., for appellee cited: Esher v. Railroad & Mining Co., 28 Pa.Super. 387; Schimmack v. Ry. Co., 33 Pa.Super. 653; Bloomsburg Steam Co. v. Gardner, 126 Pa. 80; Beck v. Hood, 185 Pa. 32; Com. v. Karamarkovic, 218 Pa. 405; Kennedy v. Williamsport, 11 Pa.Super. 91; Wall v. Pittsburg, 205 Pa. 48; Tucker v. American Car & Foundry Co., 218 Pa. 323.

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

MORRISON, J.

This is an ordinary trespass case based on the alleged negligence of the defendant in allowing a hole or trench, about twelve feet deep, to extend into the embankment, used and designed as a footwalk on one of the public streets of the city. The trench extended about six feet into the embankment, leaving an unbroken walk of about four feet from the edge of the traveled highway. The embankment was elevated about fourteen feet above the meadow land to the east. The washout or trench was caused by a flood on July 4, 1906. The plaintiff fell into it on the evening of August 19, 1906, at 9:30 o'clock P. M., breaking his arm and sustaining other injuries. That the place was, as described by the witnesses, dangerous, and that it ought to have been filled up or guarded by a railing or fence would seem such a self-evident proposition that no one ought to be surprised that the jury found the city guilty of negligence in allowing it to continue more than a month. At the place of the accident there was no sidewalk constructed in the ordinary manner, but an embankment of cinder and other material.

It is not denied that it was designed and used, with the knowledge of the city authorities, as a walk for pedestrians. The officials of the defendant must have regarded the washout as dangerous because the learned and experienced counsel for the city proved, at the trial, that red lights were kept at each end of the opening. Their contention is that the city is relieved of liability by reason of the red lights being there at the time of the accident. In our opinion, the only question presenting serious difficulty was, at the trial, the alleged contributory negligence of the plaintiff. Upon the main questions we concur with the court below, that the dangerous character of the place, the negligence of the defendant, and whether the red lights made a proper and sufficient safeguard, and were in place and burning at the time of the accident, were questions for the jury. So was the alleged negligence of the plaintiff.

The learned counsel contend that the only evidence that the red lights were not in place at the time of the accident is that of the plaintiff; that he is contradicted by several witnesses; that the charge is inadequate because the court did not call the attention of the jury to the interest of the plaintiff in the result, nor to the very strong testimony in contradiction by different witnesses.

However, the charge did call the attention of the jury to the fact that the plaintiff was the only witness testifying to the absence of the red lights, and also to the testimony of the witnesses contradicting him. At the close of the charge, the learned judge invited the learned counsel to call his attention to anything he had omitted, and it did not then seem to occur to the able and experienced counsel that the charge was inadequate on this and several other grounds now urged. The court was not requested, either by points or orally, to give such special instruction to the jury. All of the defendant's points were affirmed, except the one asking a binding instruction in favor of the defendant. We do not think there is much merit in the only special exception...