Brown v. White , 206 Pa. 106 ( 1903 )

Per Curiam,

The third point of defendant could not have been affirmed by the judge at the trial. It is not necessarily negligence to attempt to pass over even a “ noticeable accumulation ” of ice on the pavement. That may depend on the size and shape of the accumulation, the obviousness and magnitude of the danger, the means at hand of avoiding it, and other circumstances. In the present case the plaintiff had passed over the obstruction safely the evening before, and whether it was prudent in her to try to do so again was for the jury.

Nor could the fourth point have been affirmed. The plaintiff was not bound affirmatively to disprove negligence. It was sufficient for her to make out a case of injury from negligence of the defendant without disclosing negligence on her own part. If the evidence showed “ a generally slippery condition of the pavements,” then it was impossible for her to avoid some risk if she traveled them at all, and whether she used due care under the circumstances was for the jury.

The remaining assignment of error is to a part of the charge in which the judge called attention to some of the evidence favorable to appellant. There was considerable testimony as to the source from which the water came which formed the ice in question. The defendant sought to prove that it could not have come from his premises, and the judge called the attention of the jury to the turning off of the water the night before, as tending to sustain that view. He could not have gone further and charged that that single act was a complete defense without disregarding the other evidence. He properly directed the jury to consider it all together.

Judgment affirmed.