Swanwick v. Monongahela City

Citations

• 36 Pa. Super. 628
• 1908 Pa. Super. LEXIS 217

Syllabus

<p>Negligence — Municipalities—Defect in highway — Contributory negligence — Evidence—Question for fury.</p> <p>A person who knows a defect in a highway, and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect.</p> <p>The plaintiff, in an action founded on the alleged negligence of an other, does not assume the burden of disproving any contributory negligence upon his own part. Ordinarily the burden of establishing the facts upon which such negligence may be predicated is cast upon the party who takes'defense on that ground. But when contributory negligence is sufficently disclosed by the plaintiff's own evidence, of course, the defendant is relieved from the necessity of proving it. But even in such a case, unless the facts on which the alleged negligence rests are admitted, or established by evidence which is undisputed, the court may not declare, as matter of law, that such negligence exists, but must submit the question, under proper instructions, to the jury.</p> <p>In an action against a city to recover damages for personal injuries sustained by the plaintiff while riding in a wagon which sank into a deep hole in the road, the question of the plaintiff’s contributory negligence is for the jury, where the evidence shows that the road was an ordinary unimproved country road with a succession of bumps and holes; that at the time of the áccident it was so covered with mud and slush that it was hard to detect bad spots until the wheel was in them; that the plaintiff knew that the road was bad, but stated that he did not know that it was actually dangerous, and declared that he had never seen the especially deep hole which caused the accident, and that it was not to be discovered before the wheel went into it because of the mud and slush; that this was the only road he had to travel, and that at the time he was using reasonable care to avoid any injury from the jolting l