Mellor v. Burgess & Town Council of Bridgeport , 191 Pa. 562 ( 1899 )

Opinion by

Mb. Chief Justice Stebbett,

This appeal is from the refusal of the learned court below to take off the nonsuit which was ordered at the trial on the ground that the plaintiff was guilty of contributory negligence.

The.only question presented here is, whether the evidence was such as required submission to the jury of the questions of negligence and contributory negligence. As to the former, there is no room for any doubt. If the testimony on that subject is true no jury could hesitate to find that the defendant borough was guilty of negligence in leaving the steep embankment down to the railroad tracks unguarded, etc. As to the alleged contributory negligence of the plaintiff, while there is perhaps sufficient testimony to justify submission of the question to a jury, there are no fact or facts either admitted or established by undisputed evidence that would justify a trial judge in declaring, as matter of law, that he was guilty of contributory negligence, and therefore could not recover.

Without unnecessarily consuming time, by reviewing or summarizing the evidence and presenting it here, the foregoing are the conclusions we have reached after a careful consideration of the record. This case was clearly for the jury, and it should have been submitted to them with proper instructions as to the law applicable to the facts which the evidence tended to prove. As to the law of the case, there cannot be any trouble. A person who uses a street or highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination, is not necessarily guilty of negligence because he does not take the safer route. It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous, and therefore avoid it, that a trial court can say, as matter of law, that the person using the more dangerous route is guilty of contributory negligence: Stokes v. Ralpho Township, 187 Pa. 333. If the alternative route has dangers of its own, as was the fact in this case, and the dangers of the route actually taken are not so great and obvious as to deter the general public and ordinarily prudent and careful people from using it, the question of the contributory negligence of a person injured in using it is a question for the jury. The rule laid down in Haven v. Bridge Company, 151 Pa. 620, and recognized in other cases, that “ where a person having a choice of two ways, one of which is perfectly safe and the other .... is subject to risks and danger, voluntarily chooses the latter- and is injured, he is guilty of contributory negligence and cannot recover,” is not applicable to the facts which the testimony in this case tends strongly to prove.

Without further elaboration of the subject we are satisfied that the judgment of nonsuit should have been taken off, so that the case maybe tried by jury and the facts determined by them.

Judgment reversed and procedendo awarded.