Barnes v. Sowden , 119 Pa. 53 ( 1888 )

Opinion,

Mr. Justice Williams :

The single assignment of error in this case is to the refusal of the court below to give a binding instruction to the jury to find for the defendant. Whether such an instruction should have been given or not depends upon whether there was any question of fact for the determination of the jury when the evidence closed. If there was such a question, the court was right in submitting it; if there was not, it was error to turn over to the jury what was really a question of law. A brief summary of the evidence is necessary to an intelligent discussion of this question.

On the 30th of November, 1886, Barnes, with three laborers, began at eight o’clock A. M. to dig a trench from the sewer in the street to the premises at No. 2226 North Front street, Philadelphia, for the purpose of making connection with the sewer. At half-past ten the trench had been opened from the car track in the street to the curb, and from the curb across the footwalk towards the store about eight feet, leaving a passage of about four feet wide between the end of the excavation and the house line. The earth was thrown up on the north side of the trench, making a bank of loose dirt three feet high and five feet broad at its base, extending its whole length, except that the bank sloped down to the walk at the inner end. On the outside of this bank a hand-cart and some of the tools used in digging had been left. Mrs. Sowden and her sister Mrs. Burns were coming down the footwalk towards No. 2226. The bank of earth, extending for eight feet into the walk, and more than half as high as their heads, was directly before them. They passed up to the store windows on the unbroken strip of walk next the building, and Mrs. Burns passed beyond the ditch to the southernmost window. Mrs. Sowden stopped in front of the northernmost window opposite the end of the trench. When she left the window, instead of going forward to where Mrs. Burns stood, she took two or three steps backward and fell into the trench. This action is brought to recover damages for an injury sustained from this fall.

There was no question made about the fact that the defendant was lawfully engaged in making the excavation, nor was there any allegation that the work was not being done with reasonable dispatch. There was not a particle of conflict in the testimony or of uncertainty as to the actual facts. The plaintiff’s case depended on whether upon the ascertained facts she had a right under the law to charge her injuries over to-the defendant. This raised two questions: first, Had the defendant used sufficient care to protect the public from the excavation? and, next, Was the plaintiff guilty of contributory negligence ?

It is not easy to see how the defendant could have placed a larger or more striking line of obstruction in the path of the plaintiff than the mound of earth which extended for eight feet from the curb and to within four feet of the house line. Whatever want of care might be charged to him so far as the unprotected side of the trench is concerned, he had certainly fortified the side on which Mrs. Sowden was approaching very thoroughly. She was coming directly towards the bank of earth which had been thrown up in the process of digging. In the language employed by this court in the City of Erie v. Magill, 101 Pa. 616, “ it was conspicuous both as to its extent and character, and necessarily obtruded itself upon the attention of every passer along the walk.” It was impossible to overlook it, for it stretched across the walk to within four feet of the building, and it was necessary to go close to the inner edge of the walk in order to get around it. The plaintiff had accomplished this, and stopped at the store window opposite the end of the trench. The exercise of the slightest care would have prevented the fall of which she complains. Upon these facts the court was called upon to say whether the defendant had taken sufficient precautions to protect one coming from the north against falling into the trench, and if this was in any doubt, whether the plaintiff was not guilty of contributory negligence. There was no legal presumption of negligence to take the place of proof and carry this case to the jury, but the plaintiff had to establish her right to recover. If on the uncontradicted evidence she failed to show negligence on the part of defendant, or showed herself guilty of contributory negligence, it was the duty of the judge to give a binding instruction: Hoag v. L. S. & M. S. R. Co., 85 Pa. 293; King v. Thompson, 87 Pa. 365; Hayman v. Penn. R. Co. (decided at the present term), 118 Pa. 508.

It is not always an agreeable duty to take a case from the jury. The situation of a party may enlist our sympathies to such an extent as to make the duty distasteful even when it is apparent; but if a judge fails, in a case like the present, to meet his responsibilities fully and fairly, the jury are almost certain to follow Ms example. The result may be that a defendant is compelled to pay for the folly of the plaintiff for no better reason than that he is able to pay and the plaintiff needs the money. True kindness, even to impecunious and unfortunate suitors, requires an impartial and uniform application of legal rules in the trial of causes. This case is one in which a binding instruction should have been given. The plaintiff came in open daylight down the walk in full view of an obstruction three or four feet high stretching across the pavement almost to the house line. She could not fail to see it. She went around it safely, became interested in some goods displayed in a window, and backed into the trench. A clearer case of contributory negligence it would be hard to find.

Judgment reversed.