Borough of Shenandoah v. Erdman , 9 Sadler 470 ( 1888 )

Opinion by

Me. Justice Steerett:

The first specification of error was intended to present a question neither novel nor, if properly before us, difficult- of solution. Not novel, because it has been repeatedly declared that refusal to enter a compidsory nonsuit is not assignable for error, and not difficult because the motion to nonsuit was wholly unwarranted by any evidence in the case.

The only remaining specification, complaining of the learned judge’s refusal to direct a verdict in favor of defendant below, cannot be sustained, for the reason that the evidence adduced by plaintiff not only justified but demanded a verdict in his favor, unless the jury were satisfied that he was guilty of negligence which contributed to the injury complained of. A case of gross negligence on the part of the borough authorities was so clearly and conclusively shown that scarcely any attempt was made to controvert the fact. It was shown that the dangerous condition of the sidewalk, at the point where plaintiff below was injured, had been repeatedly brought to their notice, and no effort was ever made to put it in a safe condition. As the learned judge remarked in his charge, there was practically no conflict of testimony as to these facts. The only semblance of defense insisted on was the alleged contributory negligence of plaintiff himself. That, under all the evidence, was a question of fact for the jury, and not one of law for the court. It was fairly submitted to them in a clear and carefully guarded charge to which neither party excepted. They were told that if plaintiff himself did not exercise reasonable and proper care in moving along the sidewalk, he could not recover, notwithstanding the negligence of the borough authorities, and in same connection, the learned judge fully explained what is meant by reasonable care.

No exception was taken to the admission or rejection of evidence. The record presents a case which, upon all the evidence before them, was manifestly for the consideration and determination of the jury under the instructions given them by the court.

Judgment affirmed.