City of Scranton v. Hill , 1883 Pa. LEXIS 62 ( 1883 )

Mr. Justice Sterrett

delivered the opinion of the court, May 7th 1883.

The plaintiff below was severely injured by falling from the end of the culvert constructed under and across Main street, in the city of Scranton, and terminating somewhat abruptly several feet beyond the northwesterly line of the street. From a point, on the same side of the street, a short distance beyond the culvert, a foot path diverged in the direction of plaintiff’s home. According to the uncontradicted evidence in the case, including his own testimony, he intentionally left the street with the view of taking the path and following it homeward ; but, by mistake, he turned off the street too soon, — before lie had crossed the culvert and reached the: point where the path commenced, — and was thu's led to the end of the culvert, from which he fell. If he had not purposely- gone beyond the line of the street, or had not turned off quité so soon, it is very evident he would have encountered no danger. The unfortunate accident which befel him resulted not from the want of proper guards for the protection of those passing and repassing along the street, but solely from the fact that he had determined to leave and did leave the street for the purpose above stated. In answer to a question, on cross-examination, the plaintiff himself says he would not have fallen if he had not turned off the street. It cannot be doubted that if he had intended to keep within the lines of the street and proceed thereon in the direction he was going before he turned off to the left, he would have passed the. culvert in safety, and without being exposed to any danger. The testimony is susceptible of no other rational conclusion. It follows, therefore, that in purposely leaving the public highway, as he did, he took upon himself the risk of every danger that beset his path; at least, the city owed him no duty of protection in his voluntary effort, not to follow the street, but to leave it in search of the foot-path, through private property, over which the municipal authorities had no control whatever.

In the first point submitted by the defendant below, the court’was requested to charge as follows : “ It being the undisputed testimony in this case that the plaintiff left the public street of his own accord, for the purpose of entering upon a foot-path without the limit of the highway, that he did so for his own convenience, having full knowledge of the condition of the highway at that point and its connection with the foot-path, then he did so at his own peril and he cannot recover.” There was no conflict of testimony as to either of the allegations of fact embodied in this proposition. They were each clearly and conclusively established by the testimony of the plaintiff himself and other witnesses. Nor can there beany doubt as to the correctness of the legal conclusions drawn therefrom. We think, therefore, that the learned judge erred in submitting the facts to the jury, and in not affirming the point as presented, without any qualification or expression of doubt as to the correctness of the facts therein stated. The proposition was vital to the defence, and conclusive of the plaintiff’s right to recover upon the evidence before the court and jury.

For reasons already suggested, the second and fourth assignments of error are also sustained. The undisputed evidence is that the end of the culvert, from which the plaintiff below fell, was several feet beyond the limits of the street. There was no testimony from which the jury could have found “ that the plaintiff had not passed without the limits of the highway when the accident occurred.” It was therefore error to submit a question of fact of which there was no evidence.

The third, fifth, seventh and eighth specifications of error do not call for special notice. They are not sustained.

The principle stated in that .portion of the charge covered by the sixth assignment is, perhaps, unobjectionable in the abstract ; but it had no application to the facts of the case under consideration, and was calculated to mislead the jury.

The first assignment of error being decisive of the case, we have deemed it unnecessary to elaborate the points involved in the other specifications.

Judgment reversed.