Allen v. DuBois Borough , 181 Pa. 184 ( 1897 )

Pee Cuexajvc,

According to the practically undisputed evidence, the borough officials were grossly negligent in permitting the board walk in question to remain so long in an unsafe condition; and doubtless the jury had no difficulty in finding that defendant’s negligence in that regard was the proximate cause of plaintiff’s injury. But it is contended that the evidence of plaintiffs contributory negligence was such as to make it the duty of the court to withdraw the case from the jury by directing a verdict for defendant. This position is untenable. While there was some testimony tending to show that plaintiff failed to exercise that degree of care that an ordinarily prudent man would have done in the circumstances, it was clearly for the consideration of the jury, and to them it was rightly submitted. The state of the evidence was not such as would have justified the court in declaring as matter of law that plaintiff was guilty of contributory negligence. The questions involved were both questions of fact which the jury alone could legally determine; and they were accordingly submitted to them with substantially correct and adequate instructions. Neither of the specifications of error is sustained.

Judgment affirmed.