Borough of Nanticoke v. Warne , 1884 Pa. LEXIS 201 ( 1884 )

Mr. Justice Trunkey

delivered the opinion of the court,

Before the injury to the plaintiffs wife, the street commissioner had knowledge of the dangerous condition of the sidewalk in ample time to have made the needed repair. Twice lie notified the owner of the contiguous lot to repair the walk, but the repairing was not done until after the accident. The defect in the walk was known to many persons — among them the plaintiff — was plainly visible to persons travelling in and on the opposite side of the street, and could be seen by persons passing upon the walk, but the walk continued to bo used by the public as before its decay.

The testimony of the plaintiffs wife shows that she first learned of the unsafely of the walk when she was injured. Nor was she the only one who frequently walked thereon while it was unsafe without noticing the defect. The defendant called several witnesses who had opportunity to observe, and testified that, so far as they had seen, the walk was in good .repair immediately before the accident. Although the defect might have been seen by all persons who used the walk, it was not, and the injured person testifies that she did not. Then, as respects the question of her contributory negligence, it clearly was for the jury. The facts are unlike those in City of Erie v. Magill, 15 Out., 616. There the injured person admitted in her testimony that she knew of the dangerous character of the obstruction before she attempted to walk over it, and none had walked over it without observing the danger.

The answer to the defendant’s third point is the subject of the first assignment of error. It is not contended that the point should have been affirmed. As part of the basis for instruction that the plaintiff could not recover, it is put that “if the jury believe there was a latent defect in the walk,” although the evidence would not justify such belief. In argument the defendant says: “In the first place, the character of the obstruction or defect was an obvious one. It was not a latent defect — one which could not be seen without examination.” Another part of the basis was the plaintiff’s knowledge of the defect and failure to notify the borough authorities. If the authorities had knowledge of the defect, or from lapse of time they ought to have had such knowledge by the exercise of reasonable diligence, it was immaterial whether the plaintiff gave them notice. Instead of a simple refusal of the point, the court gave unexceptionable instructions on the matters referred to therein,’ so far as concerns the defendant. He submitted to the jury to find whether the defect was latent, but that was not prejudicial to the defendant even if it was admittedly patent.

Nor was there error in refusing the defendant’s fifth point, the subject of the second assignment. It is a settled rule that what is and what is not negligence in a particular case, is a question for the jury when the measure of duty is ordinary and reasonable care. As an abstract proposition, the court ought not to charge that when a husband knew of a defective sidewalk, and failed to warn his wife of the danger, he was negligent. It. could only be determined from the circumstances whether he had omitted ordinary and reasonable care.' The court instructed the jury that “if a man should see his wife about going to a'place where he knows she must in all human probability receive injury, and does not warn her of her danger, he could not, of course, recover for any damages that might result from such an act on her part; he would be guilty of negligence.” This was an illustration to aid the jury, and their attention was fairly directed to the circumstances in evidence, from which they should determine if the plaintiff had exercised ordinary care.

The remaining assignment is that the court refused to charge, “ That under all the testimony in the case the plaintiff cannot recover.” This is pressed on the ground that if the defendant is liable to the wife for the injury suffered, it is not liable to the husband in damages for the loss of his wife’s services and his expenses because of her injury. Whatever the law may be in other states, in Pennsylvania, townships and boroughs are bound to keep the roads and streets in repair, and are liable for injuries resulting solely from negligence in performing that duty. The liability is the consequence of the neglect of a statutory duty, and the right of a person does not depend on the construction of a statute providing who may recover and for what, in case of injury from defect in the highway. Owing to the legal rights of the husband, the wife cannot recover for expenses and loss of time caused by the injury — these are direct damages suffered by the husband— and if he cannot recover, the borough will escape payment of the pecuniary loss. Had the accident happened to him under similar circumstances, the pecuniary loss would be included in his damages. We are not persuaded that in case of the wife’s injury from the default of the municipality that there can be no recovery for the pecuniary loss because the right thereto is vested by law in the husband.

Judgment affirmed.