Robb v. Connellsville Bor. , 137 Pa. 42 ( 1890 )

Opinion,

Mr. Justice Mitchell:

That the reasonable care which the law exacts of all persons in whatever they do involving risk of injury, requires travelers, even on the footways of public streets, to look where they are going, is a proposition so plain that it has not often called for formal adjudication. But it has been expressed or manifestly implied in enough of our own eases to constitute authority for those who need it. Thus in Barnes v. Sowden, 119 Pa. 53, the court below instructed the jury that “ persons who walk along the footways or cross the streets of our city are bound to use their own faculties.....The plaintiff was bound to use her eyes. Not that she was to keep her eyes constantly and at every moment upon the pavement, but she was bound to do what people walking along the streets ought to do as they walk the streets in order to use them safely.” It was held that even this instruction was, under the evidence, too favorable for the plaintiff, that the obstruction was such as she was bound to see, and that her negligence was too clear to be left to the juiy. So, in the somewhat similar case of King v. Thompson, 87 Pa. 365, this court held that walking into an opening left for light and ventilation, and extending fifteen or sixteen inches from the wall of the house, was negligence per se, the present Chief Justice saying: “ Persons using public streets ought also to exercise some little caution.” In Dehnhardt v. Philadelphia, 15 W. N. 214, the judge below, who tried the case without a jury, said in his findings of law that the condition of the pavement “ could have been seen by the plaintiff if she had given attention to it.....The duty of vigilance is as obligatory on the citizen as on the municipality;” and this court said, in a per curiam opinion, that the law was correctly declared. In Philadelphia v. Smith, 23 W. N. 242, the court below charged the jury that plaintiff could not recover “if there was negligence on her part.....in walking without seeing where she was going; ” and this part of the charge is quoted with approval by our Brother Sterrett in affirming the judgment. See, also, Dickson v. Hollister, 123 Pa. 421, and Buzby v. Traction Co., 126 Pa. 559.

With the measure of duty thus established by our own cases, it is not necessary to discuss the numerous citations by appellant of more or less apposite decisions in other states. The substantial question for our consideration is whether the plaintiff’s negligence was so clear that the learned judge was right in determining it as a matter of law, or whether it ought to have been left to the jury.

The accident took place in the early evening, when, according to plaintiff’s own testimony, it was light enough to recognize persons across the street, to tell the denominations of bank-notes, and to see and step upon the plank, if she had been looking. In the course of reiterated descriptions of the occurrence, in her examination and cross-examination, she says: “ I just stumped my toe, and fell. I stumped my toe on something like a board step, I thought.....I was just walking along, and went to step, and didn’t step high enough, and away I went. I just stepped as I was stepping along, as I always did as I was walking along.....I could have seen it; it was light enough for me to have seen it, if I had known it was there; but I didn’t know it was there. I didn’t pay any attention to the pavement. . . . . Wasn’t looking or thinking of anything; only walking along. Was just walking along, and went to step, and didn’t step high enough, and caught my foot, and I went. ” And so on through all this repetition of naive and homely, but evidently truthful expressions, her description runs for fourteen printed pages without once, at any point, giving even a hint that she was looking or paying any attention to where she was going. The precise place of the accident was one where she had to step from the foot pavement to the planked street crossing, where she was bound to expect the continuity if not the level of the pavement to be broken, and where it was therefore especially incumbent on her to use her eyes. The general result of her own testimony clearly is that she was not paying such attention as the situation required. This is concisely and forcibly summed up by the learned Judge in entering the nonsuit, and his action must be sustained.

Judgment affirmed.