Monongahela City v. Fischer

Mr. Justice Paxson

delivered the opinion of the court, January 4th, 1886.

It was error to affirm the plaintiff’s third point. The effect of it was to declare that it was the duty of the defendant corporation to keep this country road in a safe condition for travel both by day and by night. It is true the defendant is a city, and its charter provides that the corporate officers “shail cause the streets, sidewalks, alleys, courts, roads, lanes, squares, parks, etc., to be kept clean, clear of obstructions, dangerous openings, and in good condition and repair.” This, however, is but declaratory of the law as it exists throughout the state as regards the care of the public highways by municipal corporations charged therewith. It imposes no burden iqDon this defendant corporation not resting upon other corporations of like character.

In the closely built-up portions of a town or city the duty of the authorities to keep the entire street and sidewalks in a safe condition may be conceded. All portions of it are being constantly used by day and by night. But this has never been held to be the rule as regards country roads. They are seldom if ever kept in repair from side to side. A sufficient portion of the middle only is kept in smooth condition, and safe and convenient for travel. The rest is often left dangerous by reason of ditches and obstructions of various kinds: (Perkins v. Inhabitants of Fayette, 68 Maine 152; Com. v. King, 13 Metc. 115 ; Blake v. Newfield, 68 Maine 365 ; Keyes v. Village of Marcellus, 50 Mich. 439; City of Scranton v. Hill, 6 Out. 378.)

The affirmance of this point involved another error. It imposed a qualification upon the doctrine, of contributory negligence that has not heretofore been recognized. It was that if the negligence of the plaintiff did not “ contribute in a. material degree to the accident,” he could recover. Without referring to the cases the doctrine of this court has always been, that if the negligence of the party contributed in any degree to the injury he. cannot recover. This is a safe rule, easily understood, and cannot well be frittered away by the jury. But if we substitute the word “material” for the word “any” we practically abolish the rule, for a jury can always find a way to avoid it. The rule itself is valuable, and rests upon sound principles. We are not disposed to allow it to be undermined.

By the defendant’s eighth point the court was asked to instruct the jury to find for the defendant. This the court refused to do.

We are of opinion that the defendant was entitled to this instruction. \ There was no evidence of negligence on the part of the city.) The bridge and culvert where the accident occurred were well constructed and reasonably safe. It is true a man might, as the plaintiff did, walk off the end of it upon a dark night, and injure himself. 4 But if there is a country road in Pennsylvania where a man groping about in the darkness of the night, without a staff or a light, may not be injured, I do not know of it. There are ditches, bridges, rocks, stumps and other elements of danger, outside of the travelled portion. The rule applicable to paved streets in cities has never been applied to country roads, and cannot be without serious injustice to the rural portions of the state.

As this view of the case cuts it up by the roots, it is not worth while to discuss the remaining assignments of error.

Judgment reversed.