March v. Phœnixville Borough

70 A. 274, 221 Pa. 64, 1908 Pa. LEXIS 436

Opinion

Per Curiam,

There was evidence that the defect in the highway had existed long enough to presume notice to the borough authorities, and the only question in the case, therefore, is the contributory negligence of the plaintiff.

The municipality is bound to keep its highways in fairly safe travelable condition, and travelers are entitled to presume that it will do so. Where the traveler has knowledge of a defect in the highway it does not follow as a legal consequence that he must under all circumstances avoid the use of it and reach his destination in some other way. It is a question of the character and imminency of the danger, and the difficulty or inconvenience of avoiding it. If the danger was serious and imminent it might be the traveler’s duty, as a matter of law, to avoid it at any inconvenience; if, however, the danger was trifling, and the inconvenience of taking another way was so great that an ordinarily prudent man would not subject himself to it, it would not be negligence not to do so. Between these extremes are the countless gradations of danger and ways of avoiding it, depending on the circumstances. This class of cases must necessarily go to the jury. The present is one of them.

Judgment affirmed.