Corbalis v. Township of Newberry

Opinion, Mr. Justice Sterrett :

In reviewing judgments of nonsuit, the well-settled rule is that the plaintiff is entitled to every reasonable inference of fact that the jury might have drawn from the evidence. Every relevant fact which it tends to prove is to be considered as admitted by the defendant: Maynes v. Atwater, 88 Pa. 496 .

Tested by that rule, the evidence was quite sufficient to carry the case to the jury on questions of fact which, if determined in favor of plaintiff, would have warranted a verdict in his favor. It was claimed by him that the abutment of the bridge, over which he fell and sustained the injury complained of, was within the lines of a public highwajr which the township defendant was bound to maintain in a condition reasonably safe for those who had occasion to use it and the bridge which formed part of the highway; that at the northeast corner of the bridge, the point where he fell over, the top of the abutment was about on the same level as the floor of the bridge and the approach thereto, and extended several feet beyond the side of the bridge, thus making the approach to the abutment several feet wider than the bridge; that tile portion of the abutment and approach thereto, extending beyond the side of the bridge, was negligently left open, without any guard-rail *15 or other mode of warning travelers of the danger; that, when about to cross the bridge, on a dark night, he was misled, and for want of a guard-rail, or other suitable barrier, he fell over the projecting portion of the abutment, and perpendicularly down, a distance of about twelve feet, upon the rocky bed of the stream, and was thus severely injured, without any negligence on his part.

Without referring specially to the evidence, it is sufficient to say that it tended to sustain the allegations of the plaintiff. It tended to show the existence, within the lines of the highway, of a dangerous pitfall, which should have been properly guarded, and that for want of such guard plaintiff was injured. It should therefore have been submitted to the jury with proper instructions as to the duty of the township authorities, as well as plaintiff himself. In actions on the case for negligence, such as is alleged in this ease, if the plaintiff’s evidence tends to make out a prima facie case, it is error to enter a judgment of nonsuit. To do so is an invasion of the province of the jury, whose duty, as a general rule, is to weigh the evidence and determine the facts.

The learned judge of the Common Pleas appears to have thought that the case was ruled by Monongahela City v. Fischer, 111 Pa. 9 ; but in that conclusion we think he was mistaken. The case referred to was a very close one, on the controlling question whether the evidence warranted its submission to the jury or not, and depended largely on its own peculiar facts, none of which were disputed. From the report of the case, it appears that the planked culvert, adjacent to the place where the accident occurred, and the approaches thereto, “were well constructed and reasonably safe.” The latter were about fourteen feet wide at the edge of the planks, and widened as they receded from the culvert. “ The sides of those approaches sloped down from the roadway to the ground at either side. Three of these side slopes were but slightly elevated. The fourth, on the river side of the roadway and east of the culvert, was between three and four feet at the highest point, next the culvert wall, and gradually diminished as it reached towards the level ground. This construction was required there because a water-way existed along that side of the road, which had to be carried into the culvert *16 within the lines of the highway, and for which provision was made by an opening in the culvert wall.” In that case, also, the plaintiff’s own account of how he came to go over the embankment shows that it happened, not in his effort to keep on the traveled roadway, but in endeavoring to cross the same in search of an adjacent footpath. He proceeded, as he testified, “ by the right-hand slope of the western approach to the culvert, about twenty steps, and thence diagonally across the culvert from the right-hand side to the left-hand side, intending to leave the wagon road, and take the footpath by Stewart’s fence.” Instead of finding the path he was in search of, he “ got over the embankment or steep grade.” That wsa the plaintiff’s own account of the manner in which he was injured.

In the case at bar, the unguarded precipice, instead of being a gently sloping embankment of three or four feet, such as are not uncommon on country highways, was an actual pitfall, nearly perpendicular, and about twelve feet high; and the injured party, instead of. intentionally crossing the highway diagonally in search of a diverging footpath, was endeavoring to follow the beaten highway, and had every reason to believe he was doing so, until he suddenly went over the unguarded precipice, down on to the rocky bed of the stream below. The facts of the two cases, as indicated by the evidence, are quite different. In the case referred to, the plaintiff’s own account of his injury shows that he could and would have traveled the highway in safety, if he had not attempted to cross it diagonally, on a dark night, in search of a diverging footpath. This alone was enough to preclude him from recovering damages from the city. In the case before us, there appears to be nothing on which to base a judgment of nonsuit, or binding instructions to find for defendant.

Judgment reversed, and a procedendo awarded.