Butcher v. Philadelphia

Citations

• 202 Pa. 1
• 51 A. 330
• 1902 Pa. LEXIS 453

Syllabus

<p>Negligence — Municipalities—Defect in sidewalk — Contributory negligence.</p> <p>The fact that a pedestrian passes over a sidewalk having a defect in it which he does not observe, is not, as a matter of law, to be declared negligence, in an action for an injury subsequently occasioned by the defect.</p> <p>In an action by a woman against a city to recover damages for personal injuries by falling in a hole in a sidewalk on a dark night, it is error to enter a compulsory nonsuit, and to refuse to take it oft on the ground of the contributory negligence of the plaintiff where the evidence shows that the plaintiff had on the afternoon of the day of the accident walked over the defective pavement, but at that time did not notice the defect owing to her attention being attracted to the other side of the street, and had not seen the hole, and that she lived some distance from the place of the accident, was not familiar with the sidewalk, and in fact, so far as the evidence disclosed, had never been over it except on the day of the accident.</p> <p>Negligence — Contributory negligence — Province of court.</p> <p>A trial court is not authorized to declare a pedestrian guilty of contributory negligence because he talks with another while passing over a foot-walk. It may be evidence upon the question to submit to the jury, but the court cannot as a matter of law declare it negligence and withdraw the case from the jury.</p> <p>Testimony as to the condition of a defective sidewalk shortly before or after an accident is competent, if it appears that there had been no change from the time of which the witness speaks to the time of the accident.</p>