Iseminger v. York Haven Water & Power Co. , 209 Pa. 615 ( 1904 )

Opinion by

Mr. Justice Potter,

When this case was here before, as reported in 206 Pa. 591, we were of the opinion that under the particular state of facts connected with the accident, the question of the contributory negligence of the plaintiff was not to be determined by the court as matter of law, but that it should be left to the jury.

Under the first five assignments of error here presented, the defendant company now urges that the trial judge should have held, as matter of law, that the failure of the plaintiff to see and avoid the hole in the sidewalk into which she stepped made her guilty of contributory negligence.

We feel now, as we did when the case was under consideration before, that the question is a close one. But a careful examination of the evidence has not shown any material change in the facts upon which our former conclusion was based. As our Brother Fell then said, “We are not disposed to relax the rule, repeatedly stated, that persons walking on city streets are bound to use their eyes, and watch where they are going, and that failure to do this will defeat a recovery for injuries that could have been avoided by the exercise of this reasonable care.” But we are not yet convinced that the trial judge should have taken the responsibility of saying that the plaintiff was negligent in failing to see and avoid the hole in the sidewalk, into which she fell. There is much in the evidence upon which to base strong argument to the jury that she. was negligent, but not enough, we think, to justify the court in withdrawing this question from the jury. There was a pile of earth and loose bricks and a pole in the street, and these objects might well have warned any one walking towards them in the street; but the only danger to which one walking upon the sidewalk was exposed was the hole, extending twenty inches within the curb. Plaintiff was not even walking directly along the sidewalk, but had come along the grass plot to the vicinity of the excavation, before stepping upon the pavement, and had there stopped with her companion to talk to a third person.

There was evidence to show that plaintiff was looking towards the person with whom she was talking, and had her attention distracted by the conversation, and that in leaving the spot she stepped backward into the hole, which she said she had not seen. As was said in the former opinion, “ the exceptional facts may make the case a close one, and place it near the border line, but as there was at least a doubt whether the plaintiff exercised ordinary care under the circumstances, the question was for the jury.” These assignments are therefore overruled.

Complaint is also made in the sixth assignment of error that the Carlisle Tables of mortality were admitted against the objection of the defendant, to prove the expectancy of life upon the part of the wife. But the jury were not left to infer that the plaintiff’s expectancy of life was definitely established by the tables. On the contrary, the trial judge in his charge told the jury that the result set forth in the table was not to be taken as a fact in this case, but only as an aid in arriving at what might be the continuation of life of the plaintiff. Attention was called to the absolute uncertainty of life, and the fact that in any event the duration of her life would depend largely upon her condition of health and upon her habits and her conduct. It is true that the introduction of mortality tables as evidence is liable to abuse unless carefully guarded by the court, owing to the tendency to give to them too much weight, without taking into account the particular circumstances of the individual case. The care which should be exercised by the court in admitting such evidence was clearly pointed out in Kerrigan v. Penna. R. R. Co., 194 Pa. 98. In the present case, we think the instructions given by the court to the jury, as to the weight to be given to the tables, were adequate. The sixth assignment of error is therefore overruled, and the judgment is affirmed.