City of Harrisburg v. Saylor , 87 Pa. 216 ( 1878 )

The judgment of the Supreme Court was entered

Per Curiam.

A careful examination of the record in this case, discloses no sufficient ground for reversal. The question of contributory negligence is a mixed question of law and fact. It is true when the facts are undisputed the court should declare the law thereon. Inasmuch, however, as the measure of duty is generally ordinary and reasonable care, the standard of the degree of care required, shifts w'ith the circumstances: McKee v. Bidwell, 24 P. F. Smith 218; Crissey v. Hestonville Railway Co., 25 Id. 83. When the evidence of concurrent negligence is conflicting, or the facts on which a right to recover are rested are controverted, a jury should pass upon that evidence, and upon those facts. The controlling facts in this case were controverted, the evidence ivas conflicting. It was therefore right to submit them to the jury, as the court did, with a clear and correct statement of the law.

Judgment affirmed.

Immediately after this judgment was entered the counsel for plaintiif in error moved for a re-argument, alleging as a principal reason therefor that only one assignment of error had been considered by the court.

On the 17th of June 1878, Mr. Justice Mercur delivered the following opinion:—

Although our decision mentions and seems to relate to but one assignment of error — that of contributory negligence — yet we considered all the questions raised in the case, so fully and ably argued. both in the paper-book and at the bar.

Motion for re-argument overruled.