Haven v. Pittsburgh & Allegheny Bridge Co.

25 A. 311, 151 Pa. 620, 1892 Pa. LEXIS 1485

Opinion

Opinion by

Mb. Justice Gbeen,

By the undisputed testimony in this case, the bridge company defendant, was engaged at the time of the accident, in the work of taking down the old bridge, and erecting a new and more commodious bridge in its place. As it was very desirable to preserve the travel of the bridge during the progress of the change, the work of construction was so conducted as to continue the travel on the roadway of the bridge. This could not be done on the footways, as they had to be taken up entirely, and, consequently, the travel on the footways was suspended while the work was going on. There was a clear and unobstructed means of travel all the way across the bridge at the time of the accident, not only for vehicles but also for all foot passengers. Any person crossing the bridge on the roadway could do so in perfect safety whether in a conveyance or on foot. When the accident occurred the footway had-been taken up about one half the distance across the bridge, and, of course, travel on the footway for that distance was impossible. The work of demolition of the footway was going on, however, all the time, and the occasion of the accident was, that some workmen had cut a square opening through the footwalk to get down to the pier below the bridge in order to prosecute their work. According to the testimony of the plaintiff and her daughter’, a piece of the planking thus removed to make the opening, lay upon the footwalk with the lower side turned up, and through this piece of plank a nail or spike projected, and was bent over, so as to be about an inch above the surface of the plank. The plaintiff having a small hole in the sole of her shoe, it happened that the bent-over end of the nail or spike, entered this hole and she was thrown to the floor and injured. The plaintiff and her daughter had been told by one of the toll-keepers when they entered upon the bridge, that they would have to take the roadway. The daughter having testified to a conversation between her mother and the toll-keeper on this subject, was asked: “Q. What was her remark ? A. Why she turned to me and said how are we going to get across the bridge; and this man answered. Q. What made her do that ? Was the bridge obstructed ? A. There was no footwalk at this end of the bridge. Q. He told you to take the roadway then ? A. He told me to take the roadway. Q. How far did he tell you to take the roadway? A. He didn’t tell us how far. We took the roadway until we came to the footwalk. Q. In answer to his question, didn’t you say the toll-keeper told you to go part of the way on the roadway ? A. That is what he said.”

“ By the Court: Q. Did he use the expression you have given now, take the footwalk? A. No, sir. He said, ‘you will have to go part of the way on the roadway.’ Q. That is all he said? A. Yes, sir.”

On her cross-examination she was asked: “ Q. But the rest of the roadway was just as clear as the part you had come over, was it? A. I’m sure T don’t know. Q. Well, did you see any obstruction of any kind ? A. I didn’t see any obstruction; the cars went just the same, but they told us at this end that we would have to go part of the way in the roadway because mamma asked them. Q. What did they tell you ? A. That we would have to go part of the way in the roadway. Q. You could have gone all the way if you had wanted to, couldn’t you? A. I suppose we could but we had been in the habit of going on the footwalk; we don’t consider ourselves teams. •Q. Well, you could have walked in the roadway the rest of the way if you had wanted to ? A. I suppose we could.”

She had previously said they entered upon the footwalk nbout two thirds of the distance across the bridge. On her direct examination she was asked: “ Q. Before dinner you spoke of going on the roadway; what made you go on the roadway? A. Because we couldn’t go anywhere else. Q. How about the footwalk ? A. Well, people didn’t use the footwalk; it seemed as if they had things piled up there and were using it; in fact the footwalk was all cut away and they had timbers where the footwalk had formerly been. Q. Then when you got over two thirds of the distance you went on the footwalk? A. Yes, sir.”

She also described the hole through the footwalk thus: “Q. You spoke about there being a hole to get down to the pier, was this plank part of the covering of that hole ? A. Yes, sir. Q. Then it wasn’t part of the bridge floor ? A. I think it was part of the bridge floor evidently, for the boards were the same size. When they wished to fix the hole they evidently had cut it, for the boards fit exactly. The boards of the bridge run lengthwise.”

The witness also said: “ I looked to see where she fell and where the spike was, and the spike was over the pier; I think it was at the beginning of the third span; I have looked since; and there were boards cut about so square [indicating] where they had evidently been working on the pier; there was plaster or cement all around and the workmen had probably come up to their dinners and had turned the board over. That was my version of it.”

As all the foregoing was the plaintiff’s testimony, and was not contradicted, the facts narrated may be taken as undisputed. The case of the plaintiff then stands thus, as it was presented to the court and jury. ' When the plaintiff and her daughter came to the bridge they found there was no footwalk and they were obliged to take the roadway in order to cross. They were told by the toll-keeper they would have to walk part of the way on the roadway, but they were not told to take the footway for any part of the crossing. They saw that the footway was destroyed for about half the way across, the planks being torn up and the timbers underneath exposed. At about two thirds of the way across the bridge, an opportunity was afforded to go upon the remainder of the footway, and they went upon it, and walked the rest of the distance upon it. The roadway for the rest of the distance was unobstructed, and they could have walked upon that across the bridge, if they had chosen to do so, but they chose to go iipon the footway. On the latter, men who were at work on the bridge, had cut a square hole through the floor over the pier large enough to pass through, in order to prosecute their work. A piece of the planking was lying upon the surface of the walk turned bottom side up with a nail or spike projecting through about two inches, but bent over so that it was not more than an inch above the surface. The end of the bent nail was not perpendicular, but horizontal, and owing to the plaintiff’s having a hole in the sole of her shoe, the end of the nail caught in the hole, and she was tiras thrown forward, and fell to the floor and was injured. The serious question in the case is, whether, conceding all these facts, the defendant can be legally held liable for the plaintiff’s injury. It must be borne in mind that the defendant liad a perfect legal right to alter its bridge, and in doing so, to destroy its footway for the purpose of replacing it with one more commodious. The destruction of the foot-way was carried on in the most conspicuous manner, and the plaintiff had absolute knowledge of the character of the work, and the actual condition of the footwalk. The defendant was not engaged in the maintaining of the footway, but in its destruction. It was not all destroyed as yet, but the work was going on. Of course, such work could not proceed without the displacement of the planks composing the footway. It would have to be expected that planks would be removed, and that pieces taken out would be lying about because the character of the work was the removing of the planks and not the maintaining of them. The work of destruction of the footway was proceeding right before the eyes of the plaintiff, and it was distinct notice to her that the footway was not in use for foot passengers, as it had been theretofore. The result of her attempt to use the footway, proves that the passage over it was attended with danger.

The case is thus brought directly within the familiar line of decisions which hold that where a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.

Thus in Forks Township v. King, 84 Pa. 230, we said, Woodward, J.: “A person who knows a defect on 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: Wharton on Negligence, sect. 440. Thus if it appear that there is danger on a piece of ice and the plaintiff voluntarily and unnecessarily undertakes to walk over it when he could plainly see it, and easily avoid it, and falls, and breaks a limb, he is precluded from recovery.”

City of Erie v. Magill, 101 Pa. 616, is to the same effect. In Pittsbg. South Ry. Co. v. Taylor, 104 Pa. 306, the present Chief Justice said: “ A man is as much bound to avoid a known danger on a public highway as anywhere else. Such obstructions are always liable to occur. . . . The plaintiff knew when he. started for this crossing that the cars were overturned by the roadside. He further knew that a neighbor’s horse had taken fright at the cars that morning. By crossing one of his own fields he could have avoided the danger without inconvenience to himself. Why did he not do so ? The answer is plain from his own testimony. He trusted to his horse ; he did not believe there was any danger.”

Just so in the present ease. The plaintiff knew that the footway was being destroyed. She knew that men were at work taking up the planks, and that necessarily there would be obstructions in the form of loose planks and openings in the footway, but she plainly thought there was no danger, and apparently did not even look for obstructions. She had a perfectly safe way to go, by simply keeping on the path over the roadway on which she was walking. But she chose the other and more dangerous way and, of course, she took her chances. It was proved by several witnesses, and contradicted by none, that the word of warning, “ danger,” was posted on the bridge in several places, and this also should have put her on her guard. But the visible signs of the actual work going on, and the destruction of a large part of the footway which she says she saw, were amply sufficient to apprise her of dangers to be avoided.

In Robb v. Connellsville Borough, 137 Pa. 42, the plaintiff, a woman, sued the borough for an injury received by falling over the footway of a street crossing, raised six inches above the level of the footway upon which she was walking, and was nonsuited for contributory negligence, because she said she could have seen the obstruction had she looked where she was going, and her fall resulted from her failure so to look. Our Brother Mitchell, delivering the opinion, said: “ That the reasonable care which the law exacts of all persons whatever they do, involving risk of injury, requires travelers, even on the footways of public streets, to look where they are going, is a proposition so plain that it has not often called for adjudication. But it has been expressed or manifestly implied in enough of our own cases to constitute authority for those who need it. Thus in Barnes v. Sowden, 119 Pa. 53, the court below instructed the jury that persons who walk along the footways or cross the streets of our city are bound to use their own faculties. . . . The plaintiff was bound to use her eyes. Not that she was to keep her eyes constantly and at every moment upon the pavement, but she was bound to do what people walking along the streets ought to do as they walk the streets in order to use them safely.”

In Hill v. Tionesta Twp., 146 Pa. 11, we held that one who undertakes to use a public road knowing that it is unsafe and knowing the defects which make it so, but not choosing to avoid them, although he could do so by taking another road, cannot recover against the township for an injury resulting from such defects.

It is not necessary to continue the citations. The doctrine is being constantly illustrated in every variety of circumstances. If the plaintiff had paid but slight heed to her steps she would have discovered the loose plank and avoided it, or if she liad simply continued on the perfectly safe course she was pursuing on the roadway, she would not have been hurt. It was her legal duty to do both of these things, but she did neither, and hence her injury.

We are of opinion that the defendant’s first and second points should have been affirmed and the case withdrawn from the jury.

Judgment reversed.