Kelly v. Bennett

1. For personal injuries received by the plaintiff. when falling upon an icy street and striking his hand upon the spear-pointed railing about an area-way, a lawful structure upon a sidewalk, the owner of the property to which the area-way belongs is not responsible in damages. 2. Error cannot be assigned to the refusal of a motion for judgment of nonsuit. And a single specification embracing more than one point, —for example, one assignment alleging error in the answers to several points for instruction, is not in accordance with the Rules of Court: Rule XXII.

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY. No. 5 January Term 1889, Sup. Ct.; court below, number and term not given. On February 8,1888, Stephen Kelly brought trespass against Joseph M. Bennett, to recover damages for personal injuries received. Issue. At the trial on April 10, 1889, it was shown in the plaintiff’s case that the defendant was the owner of a dwelling-house on the corner of Spruce and Quince streets, Philadelphia, which on January 25, 1888, was in the occupancy of Dr. Andrews, a tenant; that on that day, during a fall of snow, the plaintiff, a barber, while passing upon the icy sidewalk on Quince street, slipped and fell. As he was falling, he reached out his hand to recover himself and struck the railing guarding the area-way to defendant’s dwelling. The railing had spear-pointed projections upon its top rail, upon one of which plaintiff’s hand was thrown, causing him severe and permanent injuries. At the close, of the plaintiff’s testimony, the defendant moved for judgment of nonsuit. The court, Reed, J., refused the motion, and, no testimony being offered on part of the defendant, instructed the jury as follows: There are two questions of fact in this case, which are to be submitted to your consideration. The first relates to the negligence of defendant, and the second to the contributory negligence of the plaintiff. The first question, that is, the negligence of the defendant, depends upon the condition of the fence, which has been described to you by the witnesses. If the points of the fence were dangerous and sharp, so sharp and dangerous that a person might get hurt, then the owner might have anticipated that injuries might result therefrom; but it is for you say how far they were dangerous or sharp, and in such condition that the owner might have anticipated injuries happening as a result from them. If you should find that the fence was so dangerous and sharp that there was a reasonable likelihood of persons being hurt by it, then the owner of the property was bound to foresee such an event, and would be liable for injuries resulting therefrom; but if you should find that it was not thus dangerous or sharp, or in such a dangerous condition, — in other words, that a contrary state of facts existed concerning the fence, then there was no negligence and the owner is not liable. Even if you should find that the fence was dangerous, there are two aspects in which the action of the plaintiff might have contributed to the negligence, which is a second fact that I have left to your consideration. First, if by reason of his knowledge of the locality, or in any other way he had knowledge of the dangerous condition of the fence, and took the risk of it, he cannot recover; but in this respect, in order to make the plaintiff liable as contributing to the negligence, the plaintiff must have seen that the fence was dangerous," and that it was dangerous for him to walk there. The question for you therefore to consider in this aspect of the ease is, did this man know his danger, or would or would not a prudent man have passed by in the manner in which the plaintiff did ? If he passed by there, and acted as any other prudent man would act, then he was not guilty of contributory negligence; but I leave this question to you to determine. But there is another way in which the plaintiff may have been guilty of contributory negligence. It appears from the testimony that as he slipped he seized, or rather his hand came in contact with, the point of the railing. In this connection you must consider whether Kelly had time when he slipped to deliberately act, and put out his hand to clutch the railing, to save himself from falling, or whether it was a spasmodic act on his part, and he threw out his hand in the moment of falling without doing it deliberately, or without any time on his part for a deliberate action. In this connection one of the witnesses said that the plaintiff in falling struck his hand upon the rail; not that he grabbed it, but that in throwing out his hand he came in contact with the point of the rail. Another witness, however, said that she saw him slip on the pavement, and as he slipped he reached out his hand to grab the railing, and the injury happened. As to the measure of damages, if you should find in favor of the plaintiff, upon the questions which I have submitted to you, you can compensate Mm for his pain and suffering, for the loss of time, and for the loss of his earning power. You have heard what the Doctor has said in relation to his injury. As to the loss of earning power, the plaintiff has testified that he can shave as well as he formerly did, but that he cannot cut hair, as he formerly did, especially in view of the present fashion, which the plaintiff has called the “ feather style,” because he is unable to hold the comb so well in his left hand, on account of the stiffness in his fingers. All these facts, together with tbe others that I have adverted to, are, however, for your consideration. I am asked by the defendant to charge you upon the following points of law: 1. If the jury believe that the accident occurred by the plaintiff slipping on the pavement, by reason of ice or any other material, then the plaintiff cannot recover. Answer: I refuse to affirm this point. 2. If the jury believe that the plaintiff, by slipping, reached out his hand to protect himself, the plaintiff cannot recover. Answer: I refuse to affirm this point. 8. If the jury believe that the railing was not the primary cause of the accident, the plaintiff cannot recover. Answer : I affirm this point. 4. If the jury believe that Dr. Andrews was the tenant in possession, the plaintiff cannot recover against the owner. Answer: I refuse to affirm the fourth point, because the fence formed part of the original structure of the house before the tenant took possession of the premises. The jury returned a verdict for the plaintiff for #782. A rule for a new trial having been discharged, judgment was entered, when the defendant took this appeal, the assignments of error filed being as follows : “ Under the evidence, the learned judge erred in not granting a nonsuit. “The learned judge erred in refusing to affirm the first, second and fourth points submitted at the trial, to wit: “1. If the jury believe that the accident occurred by the plaintiff slipping on the pavement, by reason of ice or any other material, then the plaintiff cannot recover. “ 2. If the jury believe that the plaintiff, by slipping, reached out his hand to protect himself, the plaintiff cannot recover. “ 4. If the jury believe that Dr. Andrews was the tenant in possession, the plaintiff cannot recover against the owner.”