Strader v. Monroe

Opinion by

Mr. Justice Dean,

The plaintiff and her son, the latter about thirteen years of age, residents of the borough of Stroudsburg, on August 8, 1899, while riding bicycles, had occasion to cross a county bridge over Brodhead creek, the boundary of the borough on the east. The bridge was of three spans, two of 101 feet each and one of 116 feet. The bridge was twenty-eight feet wide, including a six feet wide footway on the north side, then a driveway thirteen feet wide, then six feet for a street railway, and then an unoccupied strip about three feet wide to the edge; the planks on the driveway were laid crosswise ; those between the rails of the street railway longitudinally, thus making the latter much the smoother way. The mother and son reached the bridge about half past seven in the evening and rode on the driveway about two thirds of the way across ; then concluded to return on the planks between the rails because of the smoother condition of the floor ; about twelve feet from the west end of the bridge the mother’s bicycle struck a piece of loose plank, about twenty by five inches, which had been used to patch a break or rut in the floor; there was no guard rail from this point to where the bridge ended, a distance of fifteen feet; by the force of collision with the plank, she and her bicycle were precipitated over the side of the bridge and they fell fourteen feet upon rocks below; the fall broke her spine with the consequence, that she will be, during life, a helpless invalid. She brought suit against the county for damages, averring negligence on the part of defendant in not keeping in repair the floor of the bridge, and in not maintaining a guard rail at the side. The defendant answered, that the proximate cause of the accident was the broken plank; that this she could have seen if she had looked, 100 feet distant; she was negligent if she did not look; if she looked and saw it, she was negligent in not avoiding it, either by getting over to the driveway, or by steering around it on the route between the rails she had chosen. The court below, in an elaborate charge, submitted the evidence to the jury to find, first, whether defendant was negligent in permitting the piece of plank to remain for weeks, on the floor of the bridge, and whether it negligently failed to protect the edge of the bridge only five feet distant with a barrier or guard rail, and second, whether plaintiff had contributed to the accident by her own negligence in not seeing the plank when she ought to have seen it, or if she did see it, in not using ordinary care to avoid it. The jury found for plaintiff on both questions, and assessed her damages at $15,000. If plaintiff was entitled to a verdict at all, it could not, with plausibility, be argued, that the amount was excessive. She was a comparatively young woman, only thirty-nine years of age, in excellent health, earning a good salary in a manufacturing establishment; she is now incapacitated for life.

As to her alleged contributory negligence, there was some evidence to sustain the charge, but it was not of that undisputed character, as appellant argues, to warrant the court in withdrawing it from the jury. In view of it, it is scarcely worth while to spend time in reviewing the elaborate discussion of counsel, as to what was the remote or what the proximate cause of the accident. If, it unquestionably appeared, that the piece of plank was the dominating cause, and therefore, the proximate one, and, that just as unquestionably, plaintiff was guilty of contributory negligence in permitting her bicycle to strike it, it would, perhaps, be material to discuss the threadbare subject of proximate and remote cause; but in this case, it is of no practical importance. The court below spoke thus to the jury:

“ She was bound, gentlemen of the jury, to ride her bicycle with reasonable care and caution. She was bound to observe where she was going. She was bound to take notice of obstacles that may have been in the way. Now then was she exercising reasonable care and caution when she was riding her bicycle, in the manner in which she did ride it ? The evidence is, that the boy, her son, was from twelve to fourteen feet in front of her; that she was riding along following him; that they were riding slowly as the evidence describes, perhaps four to five miles an hour. We think the testimony is to that effect; and that when her attention was called to the rut or the plank by her boy, who had passed it, by going around it, that she was then upon, or at this plank or obstruction, and lost the control of her bicycle, and the accident happened by reason of losing that control in passing that plank or obstacle.”

This was the pith of the charge on the question of contributory negligence, and although in different language, was repeated over and over to the jury. Undoubtedly, the cause of the deflection of the bicycle towards the edge of the bridge was the piece of plank, and if the occurrence had stopped there, it is highly probable, very slight, if any, injury to her would have resulted; but she went over the edge, fell fourteen feet to the rocks below and broke her spine; if the piece of plank caused the bicycle to turn, the absence of the guard rail was the cause of the serious injury. If defendant was, as is scarcely denied, guilty of negligence in not maintaining a guard rail at that point, as the jury has found, and was guilty of negligence in permitting the piece of plank to remain on the floor of the bridge, as the jury has also found, and plaintiff was not guilty of contributory negligence, it helps us not in determining liability, to determine also, which of the two operating causes was the dominating one; it must pay if either was.

The only question remaining is, did the plaintiff disclose a case clear of contributory negligence? Not, did her case rest on clear and indubitable evidence, for in this issue, the law holds her up to no such measure of proof; but from all the evidence, might the jury, on fairly weighing it, find in her favor ? She testified her son was fourteen or fifteen feet in advance of her; that he saw the plank and avoided it, but called out to her; when she heard him, she alleged she was at most only three feet from it, too late for her to change her course; it is argued, that the obstruction was conspicuous enough to be seen more than one hundred feet off; she replies, her boy was in front of her, and therefore, it could not be seen by her; she cannot say how far she could have seen it on her wheel, but she admits that she could have seen it a considerable distance off, if she had not been on a wheel. It is argued, that if the obstruction could have been seen 100 feet off, then the body of a small boy in front could not have shut off vision for that distance; or that when her boy warned her she could have suddenly dismounted, even if she could not have otherwise avoided the plank. There are, perhaps, inconsistencies in her testimony, but they certainly are not so glaring as to stamp it with untruthfulness; some of her answers to adroit and persistent cross-examination indicate, that she might have seen the obstruction and have avoided it; others, that she exercised all the care demanded by prudence, under the circumstances. When asked, what she did when her son called to her to look out, she answered:

“ Before I had time to turn out for the bad place my wheel struck something and threw me off the wheel, and I knew that I was going down and I grabbed for the iron of the bridge to save myself, and instead of catching the iron of the bridge, I caught my wheel and pulled it on top of me, and that is the last I remember.”

Taking her testimony, with all its inconsistencies, we cannot more clearly express our opinion, than by repeating what our Brother Mitchell said in Ely v. Pittsburg, etc., Railway Company, 158 Pa. 233. In this case, Dr. Ely, the plaintiff, on whose testimony the case hinged, testified that he stopped “within about forty feet of the track and listened for the train,” then on cross-examination he admitted he could not see down the track from where he stopped; then, when his attention was called to the uselessness of looking at a point from which he could not see, his explanation was, that until he came within seventy feet of the track, he could see both up and down, because he was driving near it. Says Justice Mitchell : “ This testimony was contradictory and the net result of it by no means clear. On part of it, he was plainly entitled to go to the jury, on the other part of it, equally plainly he was not. Under these circumstances, the case must go to the jury, whose province it is, to reconcile conflicting statements, whether of the same or different witnesses, or to draw the line between them and say which shall prevail.” And so say we here ; her testimony, notwithstanding its apparent inconsistencies, was for the jury; they had the witness before them in all her physical helplessness, with the nervousness incident to a shattered spine; they had every means of judging as to the truthfulness of her statement, not only from its matter but from her manner. The court was bound to submit it to them. In trials of fact, if it were required that all testimony should be consistent, either with itself, or that of other witnesses, but few cases would reach a jury. The learned judge committed no error in leaving the question of contributory negligence to the jury, and his instructions were quite as favorable to the defendant, as it had any right to ask.

What we have said, practically passes on appellant’s eight assignments of error; they are all overruled and the judgment is affirmed.