Vallo v. United States Express Co. , 147 Pa. 404 ( 1892 )

Opinion by

Mb. Justice Heydbick,

Tbe right of occupants of places of business upon a public street to use the sidewalk in front of their premises in receiving and sending out merchandise is not questioned. But the law imposes upon such persons, as it does upon all others using the sidewalk for any other lawful purpose, the duty to exercise their right, with a due regard to the safety of pedestrians, or, as was in substance said by the learned trial judge, in a reasonable manner: Com. v. Passmore, 1 S. & R. 219; Welsh v. Wilson, 101 N. Y. 254. What is a reasonable manner must always depend upon the circumstances. It might, and doubtless would be, unsafe to leave such an obstruction as was described in this case unguarded, for a single moment, upon a sidewalk near a railway station, thronged by people rushing to and from trains, while no inconvenience might be apprehended from leaving the same obstruction several hours upon a less frequented street. Hence, it is impossible to lay down any precise rule as to the length of time a person may allow his property to remain upon a highway without incurring the charge of negligence.

But the negligence of the defendant, if any existed, consisted not alone in leaving a trunk, or small iron safe, upon the sidewalk five minutes, more or less. If the plaintiff be believed, he was passing along one of the principal thoroughfares of the city of Philadelphia in the evening of July 6, 1889, between the centre of the sidewalk and the curb, and when he came opposite the defendant’s premises its servants suddenly pitched a trunk out of its delivery wagon towards him. To avoid being struck by the flying trunk, he moved towards the centre of the sidewalk, “ keeping his eye upon the trunk while it was coming,” and, in so doing, fell over another trunk, and thereby sustained the injuries for which he seeks compensation.

Whether the trunk was suddenly, and without warning, thrown out of the delivery wagon at such time, and in such manner, as to imperil the plaintiff, was a controverted question of fact which could be determined only by the jury. If it was so thrown, the defendants were clearly guilt}' of negligence, for no man may innocently hurl a projectile across a highway upon which people are constantly passing.

It is, however, contended that, inasmuch as the plaintiff escaped injury from the trunk thus recklessly thrown from the wagon, the negligence of the defendant is, at most, only the remote cause of the injury. This contention raises the question whether the plaintiff was so suddenly put in peril as to leave no time for consideration of the way of escape, and whether, under the circumstances, it was natural, and probable, that he would instinctively retreat in the direction of the obstruction placed by the defendant upon the sidewalk, and, having his eye fixed upon the danger from which he was fleeing, fall over that obstruction. If such was the natural and probable course of events, the negligent throwing of the trunk was the proximate cause of the injury: Railroad Co. v. Taylor, 104 Pa. 306. But whether that natural and continuous sequence of events, which is necessary to fix responsibility for an injury upon the author of a negligent act, has been proved, is ordinarily a question for a jury: Railroad Co. v. Kellogg, 94 U. S. 469; Ehrgott v. Mayor of New York, 96 N. Y. 264; and there is nothing in this case to make it an exception to the general rule.

Assuming, as we must, that the jury found that, by reason of the sequence of events already mentioned, the negligent throwing of the trunk was the proximate cause of the plaintiff’s injury, the question of contributory negligence is necessarily eliminated. That finding involves not only the negligence of the defendant, but a consequent peril, so suddenly precipitated upon the plaintiff as to leave no time for voluntary action. Under such circumstances, it is believed no person has ever been held guilty of contributory negligence, because he did not choose the best way of escape from the impending danger. On the contrary, the principle to be extracted from numerous cases in this and other states is, that when a person has been put in sudden peril by the negligent act of another, and, in an instinctive effort to escape from that peril, falls upon another, it is immaterial whether under different circumstances he might and ought to have seen and avoided the latter danger. This being the settled law, it is difficult to understand why greater circumspection in the presence of a danger that could not'be anticipated should be required of a man having but one eye than from the less unfortunate.

By its sixth point the defendant requested the court below to charge the jury that the plaintiff was unqualifiedly bound to engage medical aid and attention for such length of time as his injuries made necessary. To have so charged would have been manifest error. It would have required the plaintiff to have exercised greater care in mitigating the consequences of an injury, already inflicted, than the law requires in the first instance to avoid the injury. The utmost the defendant could, with propriety, have asked was, that if a man of ordinary prudence would, under the like circumstances, have engaged medical aid and attention more promptly than the plaintiff did,' his delay in that regard should be taken into consideration, and no compensation allowed for any damages that might have been so averted. But, as no such instruction was asked, we are not called upon to express an opinion as to whether it ought to have been given.

The fifth assignment of error was not pressed. As to the sixth and seventh assignments, it is enough to say that the only remedy for an excessive verdict is a motion for a new trial, and that the refusal of such trial is not assignable as error.

The judgment is affirmed.