Siegler v. Mellinger ( 1902 )

Opinion by

Mr. Justice Mitchell,

A man desiring or being compelled to travel an unknown road on a dark night must always be in some uncertainty, if not peril. The middle of the road is usually the freest from obstructions and in the best condition for travel, and, therefore, is prima facie the proper and safest place to go, notwithstanding its special disadvantages in the risk of collision with vehicles having also a right of way. On the other hand, a side path perhaps offers smoother and more comfortable walking, but is liable to its own special dangers such as produced the accident in this case. Plaintiff testified that the cinder side path at the point where he turned on to it and along most of the distance was level, or nearly so, with the rest of the roadway. In cities or municipalities where there is a well-defined sidewalk, and on country roads in daylight, the side is usually the proper place for foot passengers, and circumstances might be shown as to the condition of the side path and of the general roadway that would make a question for the jury whether a traveler, even in the dark, might not be justified in following the former instead of the latter, but the presumption is that it is negligence to do so on a dark night on a country road. The circumstances testified to in the present case were not sufficient to overcome this presumption.

There was no evidence to warrant a jury in finding the defendants guilty of negligence. They were under no obligation to construct a footpath, and the one they permitted to be constructed and used there, was not intrinsically dangerous. So far as shown it was a smooth cinder path about four feet wide, running at the side and for the most part on a level with the roadway. At the point where this unfortunate accident occurred, the path was between five and six feet above the road, and a man walking in the dark might, as in this case, make a misstep. But that did not make the place intrinsically dangerous for ordinary travel, which is the measure of defendant’s duty in regard to it.

The opinions of witnesses that the place was dangerous were properly excluded. There was nothing in the situation which a brief description would not enable the jury fully to understand. In such cases opinions of witnesses are not admissible: Graham v. Penna. Co., 139 Pa. 149.

Judgment affirmed.