Albrecht v. Erie City , 265 Pa. 453 ( 1920 )

Opinion by

Mr. Chief Justice Brown,

The recovery by the plaintiff in the court below was for injuries sustained in falling on an icy sidewalk on Parade street, in the City of Erie. Under the testimony submitted, the negligence of the city and the contributory negligence of the plaintiff were for the jury; but the case must be retried for the refusal of the learned trial judge to permit counsel for defendant to cross-examine the plaintiff for the purpose of developing from him the fact that he had been guilty of contributory negligence.

A plaintiff seeking to recover damages for injuries alleged to have been sustained through the negligence of the defendant must make out a case clear of contributory negligence: Heiss v. Lancaster, 203 Pa. 260; Kuhn v. Ligonier Valley R. R. Co., 261 Pa. 147. In the case under consideration the plaintiff testified that when he fell it was dark, and snow, which covered the sidewalk, prevented his seeing the ice. Conceding that this testimony absolved him from the charge of contributory negligence, he may have withheld facts which he ought to have disclosed and which might have shown that he had not exercised proper care in attempting to pass over the sidewalk. It was, therefore, clearly competent for counsel for defendant to develop such facts on cross-examination: Smith v. Phila. Traction Co., 202 Pa. 54; Quigley v. Thompson, 211 Pa. 107; Reibstein v. Abbott’s Alderney Dairies, 264 Pa. 447.

The plaintiff lived on Parade street, only a block from where he fell. He had lived there for three years, and, to develop from him not only his familiarity with the sidewalk, but his actual knowledge of its icy condition on the day he slipped and fell upon it, he was asked by counsel for defendant how he had gone to the point of the accident and how long he had been in the habit of traveling over the street. His answers to these questions, if they had been allowed, might have shown such knowledge by him of the dangerous condition of the street as made it inexcusable for Mm to attempt to walk over it at tbe time he fell. Tbe questions were disallowed, because tbe trial judge was of opinion that they related to matters upon which tbe witness bad not been interrogated on bis direct examination, and were attempts to introduce tbe defense by way of cross-examination. This ruling overlooked tbe fact that tbe city was not called upon to make any defense until tbe plaintiff bad presented a case clear of contributory negligence; and on bis direct examination be could not withhold any evidence tending to show that be bad contributed to tbe accident by bis own lack of care under tbe circumstances. Whatever, as to this, be failed to disclose, or was not developed on direct examination, it was tbe right of tbe defendant to elicit on cross-examination. He could keep nothing back within bis own knowledge that barred bis right to recover. If be did so, either voluntarily or by tbe failure of bis counsel to develop it on direct examination, the defendant’s right was to call it forth on cross-examination, not as a matter of defense, but as part of tbe plaintiff’s case, for tbe consideration of tbe court and jury, relieving tbe defendant from making any defense.

Tbe first and second assignments of error are sustained and tbe judgment is reversed with a venire facias de novo.