Merriman v. Phillipsburg Borough , 158 Pa. 78 ( 1893 )

Opinion by

Mr. Chief Justice Sterrett,

In this case, the controlling questions were defendant’s negligence and the alleged contributory negligence of the plaintiff. As to the former there appears to have been no room for doubt. The testimony discloses the grossest carelessness on the part of the borough authorities in maintaining a dangerous pitfall, within the lines of the street, which the judicious expenditure of a few dollars could have obviated: Corbalis v. Newberry Township, 132 Pa. 9. If those whose duty it is to keep public highwajrs in a reasonably safe condition for public use were properly dealt with and adequately punished for their negligence, there would be fewer nuisances and man-traps maintained in public streets and highways.

There was some evidence of contributory negligence, but the question is whether the fact was so clearly established as to justify the court in refusing to take off the judgment of non-suit. An examination of the testimony has satisfied us that it was not. Whether the plaintiff was or was not guilty of negligence which contributed to the injury of which she complains, must be inferred from all the facts and circumstances disclosed by the testimony. Such inferences of fact are for the jury and not for the court. In Borough of Easton v. Neff, 102 Pa. 474, a case in some respects not unlike the one before us, Mr. Justice Clark said: “ There was evidence in the cause, some of it inferential in character, tending to show contributory negligence, and this was for the jury. In the use of a public highway in general, ordinary care is undoubtedly the rule. . . . Negligence is defined, however, as the absence of care according to the circumstances. In this case, the plaintiff was quite familiar with the crossing; she had passed over it often on her way to and from church; she says she knew it to be a place of danger ; she was old and could not see well; the injury was received at night, and the night was dark. Did she exercise a proper measure of care? She was bound to use such care as a prudent person would have used under such circumstances. . . . For this reason the question of contributory negligence was peculiarly for the clear and free exercise of the judgment of the jury, under proper instructions from the court.”

So, in this case, we think the question of contributory negligence was not for the court, but exclusively for the jury. It was their special province to ascertain the facts and-draw from the testimony such inferences of fact as to them it appeared to warrant. On this point, all the facts and circumstances attending the injury should be fully considered.

Judgment reversed and a procedendo awarded.