Becker v. Philadelphia
Becker v. Philadelphia
Opinion of the Court
Opinion by
About eleven o’clock on the morning of October 12, 1901, Margaret Becker, while walking on South Broad street, in the city of Philadelphia, a little north of Lombard street, stepped into an opening in the pavement, fell and was injured. This opening was in front of property No. 423, about five feet from the curb line, and was nineteen inches long and eig'hteen inches wide. A tree had formerly stood there, having been one of a row planted along the east side of Broad street from Pine to Lombard, but which had been cut down some time before.
If nothing more than the foregoing had been developed on the trial, the judgment of nonsuit could not be disturbed, for, clear as the evidence of the city’s negligence may have been, the plaintiff was as clearly guilty of contributory negligence, if she stepped into the opening, which, by the exercise of ordinary care in walking up the street, she was bound to see and avoid. But negligence is always want of care under the circumstances, and the question on this appeal is, whether, under those surrounding the plaintiff’s fall, the court correctly held that the only inference to be drawn from them was that she had contributed by her own negligence to her injuries, and could not, therefore, recover.
What were the circumstances connected with the plaintiff’s fall? Just before she reached the pavement in front of 423 South Broad street a crowd of young men—twenty-five or thirty—approached her, carrying suit cases and bags in their hands. They obstructed her view of the pavements in front of her, in one of which was the opening into which she stepped a moment afterwards. There is no evidence that she knew it ■was there, though it had existed for several months. She was carrying a large market basket and a butter kettle. The crowd separated and allowed her to pass through it, and almost immediately after she emerged from it she stepped into the hole and fell. Her testimony in chief was : “ Q. State what happened to you after you crossed Lombard street. A. When I got three or four doors above Lombard street I met a lot of
The judgment is reversed and a procedendo awarded.
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- Negligence—Municipalities—Defect in sidewalk—Contributory negligence— Evidence—Question for jury. In an action by a woman to recover damages for personal injuries sustained by a fall in a hole on a sidewalk in a city, it appeared that the accident occurred about eleven o’clock in the morning. The hole was about five feet from the curb line, and was nineteen inches long and eighteen inches wide. A tree had formerly stood there, but had been cut down several months before. Plaintiff had no knowledge of the hole. Just before she reached the pavement in which the hole existed, a crowd of twenty-five or thirty men approached her with suit cases and bags in their hands. Plaintiff was carrying a large market basket and a butter kettle. The crowd separated and allowed her to pass through, and almost immediately after emerging from the crowd she stepped into the hole and fell. On her examination in chief she stated that she stepped into the opening almost the instant she got through the crowd that had concealed it from her. On cross-examination she gave the distance as six or eight feet, after repeatedly saying she did not know what it was. Held, that it was error to enter a nonsuit, and that the jury should have been instructed that if they believed, after plaintiff had passed through the crowd she had an opportunity to see the opening, and by the exercise of ordinary care in looking where she was going, ought to have avoided it, she could not recover; but that if she stepped into it just as she*got through the crowd, without having had an opportunity to see it, or if, burdened as she was, she stepped into it after having emerged from the crowd, and, under the circumstances, could not be reasonably expected to have seen it before stepping into it, her negligence was not a bar to her right to recover.