Musick v. Borough of Latrobe , 184 Pa. 375 ( 1898 )

Opinion by

Mb. Justice Williams,

The general rule is well settled that the province of a witness is to state facts, and that of the jury is to draw conclusions from them. There are some exceptions to this rule, particularly when the facts are of such a character as to make it necessary, or at least helpful, that the jury be guided in drawing their conclusions by the testimony of persons possessing superior knowledge of the subject under investigation. In such cases the opinions of expert witnesses are given to the jury as to the effect of certain given facts, or their own conclusions drawn from a personal examination of some object. Witnesses have also been allowed to express opinions upon the safe or unsafe character of machinery, or of the condition of a highway, when an oral description by witnesses would not adequately present the situation to the jury. But if the defect or obstruction complained of is such as admits of a full and adequate description, the question whether it is dangerous or not is not a question of skill or art requiring the aid of expert testimony, but like other questions of fact is to be determined by the jury. They must learn the facts from the witnesses, and then draw their own conclusions as to the dangerous character of the highway, as well as to the contributory negligence of the traveler who suffers an injury. In all ordinary cases it would be as appropriate for a witness to give his opinion about whether the plaintiff’s conduct amounted to contributory negligence or not, as to whether a situation fully described by him is dangerous in its character. The first assignment of error which complains of the admission of such testimony in this case is sustained.

The defendant’s third point asked an instruction to the effect that, if the conduct of the plaintiff at the time of his injury was negligent, and if his negligence “ contributed to any degree to his injury,” this should preclude a recovery of damages by him against the defendant. The learned judge refused this point, saying “This point would require us to dispose of the whole case. Under all the facts of this case that question is to be disposed of by the jury.” This was not an answer to the point.

The question raised was over the legal effect of contributory negligence, if found to exist, on the plaintiff’s right to recover. It was clearly a question of law upon which it was the duty of the court to give the jury distinct and definite instructions; which it was as clearly the duty of the jury to accept and act upon. It is probable that in the haste of the trial the effect of the point was misapprehended, but the answer was none the less erroneous. The fifth assignment of error which is directed to this answer of the learned judge is sustained.

In the sixth point the question on which the court was asked to pass was the effect of certain enumerated facts in establishing the contributory negligence of the plaintiff. The effect of these facts was for the jury, and hire instruction was properly refused. The same may be said of the ninth point. It asked the court to declare the conduct of the plaintiff in entering the alley on that night to be negligence, as matter of law. This was properly declined, because on all the evidence the question was one of fact for the jury. The sixth and twelfth assignments of error relate to the instructions of the court in regard to the duties of municipalities in the care of streets and alleys. They are not sustained. Ordinarily the alleys in a borough are little used by the public, and do not need to be kept in the same state of repair as the traveled streets. The care of the municipality over them should be proportioned to the public use that is made of them. The alley in which the accident happened was apparently safe during the day. If it was in use during the night as a thoroughfare, that fact was one of which the borough was bound to take notice. The general statement that the municipality was bound to the same degree of care over its alleys as over its streets is not correct. The care to be bestowed upon each must be measured by the public use. When an alley does in fact become a public street by its use, it should receive the attention that a public street requires ; but until it becomes a traveled thoroughfare in fact, it is not incumbent on the borough authorities to treat it as such. The measure of care is proportioned to its character and the public needs. We cannot say there was error in the instructions relating to the measure of damages. Some further explanations would have been helpful to the jury, perhaps, especially in regard to compensation for pain. Pain is not susceptible of exact compensation by any pecuniary standard. It is however an element to be considered in determining the amount of injury which the plaintiff has sustained. It should be considered in connection with all the attending circumstances, with a view to making practical compensation to the plaintiff for his actual loss. Estimates of a fanciful or sentimental character are to be carefully avoided. It is not every twinge of pain, that can properly be make a subject of compensation; but the actual injury sustained by the plaintiff, including the loss of time, the personal injury inflicted, and its consequences in suffering and impairment of earning power. All these should be considered in a practical, businesslike way in making up the verdict.

The judgment is reversed and a venire facias de novo awarded.