Mattimore v. City of Erie

Citations

• 144 Pa. 14
• 22 A. 817
• 1891 Pa. LEXIS 579

Syllabus

<p>1. In trespass for negligence, an instruction that, although the defendant may have been guilty of negligence, “yet if the plaintiff himself was guilty of any negligence which materially contributed to the happening of the injury, then he cannot recover,” is error: Monongahela City v. Fischer, 111 Pa. 9; Oil City Supply Co. v. Boundy, 122 Pa. 449.</p> <p>2. And such erroneous instruction is not cured by a direction, in a subsequent part of the charge, that if the jury should find that the plaintiff “was playing with the wheel, and attempted to move it and thereby caused it to fall, he would be guilty of contributory negligence and could not recover.”</p> <p>(a) Plaintiff brought trespass against a city for negligence in suffering machinery to remain near a sidewalk on 'a public lawn, the machinery being kept there by an abutting owner, and in such jjositiou that a large wheel fell upon and injured the plaintiff, a boy of nine years, who stepped off the walk and touched it:</p> <p>3. The wheel not being upon the public highway, and there being evidence that no like accident had previously occurred from such use of the lawn, the municipality could not be held liable, in the absence of evidence of distinct notice of the negligent manner in which the machinery was placed in position by the owner.</p>