#### Southside Passenger Railway Co. *v.*Cox.

In an action against a street passenger railway company, to recover damages for personal injuries, caused by the alleged negligence of the defendant, it appeared that, about three weeks before the accident, the company piled about a dozen rails in the gutter of a street at a point where there was no regular crossing, and the plaintiff tripped over one of the top rails which had become displaced,' and projected into the street. The court was requested to charge : “If the jury believe that there was light enough for the plaintiff to see the rails at the time the accident occurred, and the snow did not obscure the same, and the plaintiff could have avoided the pile by going around it or crossing the street at another point, the plaintiff was guilty of contributory negligence in not seeing said pile and avoiding the same, and therefore cannot recover.” The court refused to so charge, but left the question of negligence and contributory negligence to the jury. *Held,*after verdict and judgment for plaintiff, that the judgment should be affirmed.

*It seems*that it is negligence for a street car company to take up old rails from their track, pile them in the gutter on the street, and leave them there for several weeks.

In the above case, the court was requested to charge as follows, on the question of proximate cause : “ If the company’s employees and servants placed the rails in question in proper order side by side where the same were deposited in the gutter, and the accident occurred by reason of the subsequent displacement of one of the rails, without the agency of said company, and would not have occurred without such displacement, the company would notin that case be liable for the injury.” The Court: “Refused. It is for you to determine whether or not such displacement was a probable result of the original placing of the rails upon the street.” *Held,*no cause for reversal.

Oct. 31, 1888.

Error, No. 222, Oct. T. 1888, to C. P. No. 1 Allegheny Co., to review a judgment on a verdict for plaintiff, in an action on the case, by Stephen Cox against The Southside Passenger Railway Co. to recover damages for personal injuries caused by the alleged *141negligence of the company defendant, at March T. 1887, No. 636.

The declaration averred that the defendant “ negligently piled on the side of Second avenue next to the curb, a large pile of track iron, and allowed the same to remain there for a long time, so that one of the top pieces became disengaged from the rest, and swinging around extended out over the street, one end lying on the pile and the rail extending out into the street about six or eight inches above the street, and the plaintiff in crossing, not seeing said bar, tripped and fell and broke his arm.” Pleas, not given.

The evidence was to the following effect, on the trial, before Slagle, J.:

The plaintiff testified that the accident occurred on Nov. 26, 1886, about twenty minutes to six o’clock in the evening when it was “ about getting dark ; ” that he was carrying a can of oil at the time, and that his foot caught on a projecting rail laying on the top of the other rails piled up in the gutter next to the side walk, causing him to fall and strike his elbow on the curb stone. Plaintiff also testified that snow was falling at the time, and that he did not see the rails. The only person who saw the plaintiff fall, was a witness named Detlinger, who testified that he saw the plaintiff fall when he was at a distance from him of 155 to 160 feet. The evidence showed that the place where the rails lay was not a regular crossing, and that it was distant from a street lamp 60 or 100 feet, and that the street lamp was lighted at the time of the accident. The foreman of the defendant testified that the rails were piled in the gutter sometime in the first week of November, 1886, that they were piled evenly one upon the other, and that he never saw them displaced.

The evidence was further to the effect that the rails, some twelve or fourteen in number, had been taken up from the tracks running along the street where the accident happened, and that they were subsequently taken about a mile away and put down.

The Court charged the jury, inter alia, as follows:

“ If, as appears by the evidence, (if you believe it to be true), the defendant company were in the act of repairing their railway, at or near the point of this accident, and, in a reasonable and proper manner, piled these rails in the gutter for the purposes of their business, they had a right to do that. If they did it in a negligent and improper manner, then they would be liable for consequences arising from that improper manner of doing it; or, if they left them there for an unreasonable time, they might be responsible, provided the accident happened from the negligent manner of piling them or the length of time they allowed them to remain.

“ Then you come to the next question, as to the cause of this accident. Was it caused by any negligent act of the railway company in placing the rails there ? It was argued that if they were put there in a way that they would not actually do any harm to a person passing along the street — if they were piled straight and care*142fully — that the railway company would not be responsible if they got out of place without their fault. That would be true ordinarily; but if that was a reasonably probable result of their being left there for a length of time; if they ought to have anticipated that some person would put them out of position, or that they might, by accident, become misplaced, and they were left there for a length of time until they were displaced, they would still be responsible; but that is a matter for you, not a question of law.

“ If you find that the defendant company — assuming, as I have instructed you, that they had a right to place the rails there — were guilty of no negligence, that there was nothing negligent or improper in the manner in which they placed them, or, the length of time they were kept there (and they would have a right to keep them there as long as the business of repairs made it reasonable and proper), or, in allowing them to be displaced, you would find for the defendant company.

“ If, however, you find they were negligent in either of these respects, the next question for you to inquire into is, was the plaintiff himself negligent in the manner in which he exercised his rights ? Now, it is true that a person passing along the streets has the right to assume that the public has done its duty in keeping the streets in ordinary safe condition, and that every person who has a right upon the street, whether individual or corporation, has done his duty; yet [a person passing along the street must know, must remember, that the streets are not always free from obstructions. There are some obstructions which may be legally there, and others that may be illegally there. He has a right to, and must, take notice of those which may legally be in the streets, and, therefore, he has no right to pass along the streets with his eyes shut; he must look and see where he is going ; that is, he must take reasonable care and caution in passing along the street; he is not obliged to see everything, because a man may be careful and still omit seeing some things, and especially if they are not legally on the street; but he must have his eyes open in order to avoid those things which may be there properly.]

“ Now, the question you will determine is, did the plaintiff exercise the care that an ordinary, prudent and reasonable man would in passing along this street? He came down Try street to Second avenue — there is no necessity to trace him before that — he was not bound to cross over to the south side of the street at that point; he had a right to pass along on either side of the street. He proceeded up on the left hand, or the north side of the street, and undertook to cross over where there was no crossing. He had a right to do that if he chose ; but a man who undertakes to cross a street where there is no crossing should exercise more care than he would where there was a crossing, because there are usually more obstructions on the streets where there are no crossings; he must exercise reasonable and ordinary care in doing so. If he crosses either on a *143side-walk, or on a crossing, or upon the street where there is no crossing, the degree of care to be exercised would be different at one point than at another, as was illustrated by Mr. Marshall in his argument. What would be care under one state of circumstances might be gross negligence under another. ■ Again, if it were dark, the question would be considered, whether or not it was prudent and proper for a man to cross where there was no regular crossing without waiting until he got to a lamp post where he could see the street as he crossed over. All these matters are for you, and you will take the whole case into your care, and consider: 1st. That the defendant was bound to exercise reasonable and ordinary and proper care, under all the circumstances, in the exercise of what, I say, was a legal right. 2nd. That the plaintiff, on the other hand, was bound to exercise ordinary and reasonable care in exercising his rights as he passed along the street; and they must both concur — negligence on the part of the defendant and care or freedom from negligence on the part of the plaintiff, in order to entitle the plaintiff to recover.”

The defendant presented, inter alia, the following points:

“ 4. If the jury believe that there was light enough for the plaintiff to see the rails at the time the accident happened, and the snow did not obscure the same, and the plaintiff could have avoided the pile by going around it or crossing the street at another point, the plaintiff was guilty of negligence in not seeing said pile and avoiding the same, and therefore cannot recover in this action. *Ans.*Refused. The facts referred to, and inferences from them, are for the jury.”

“5. If the company’s employees and servants placed the rails in question in proper order side by side where the same were deposited in the gutter, and the accident occurred by reason of the subsequent displacement of one of the rails, without the agency of said company, and would not have occurred without such displacement, the company would not in that case be liable for the injury. *Ans.*Refused. It is for you to determine whether or not such displacement was a probable result of the original placing of the rails upon the street.”

“5. Under all the evidence in the case, the verdict should be for defendant. *Ans.*Refused.”

*The assignments of error*specified, 1-3, the refusal of defendant’s points, quoting them.

*Thos. C. Lazear,*with him *C. P. Orr,*for plaintiff in error.—

Defendant’s 4th point should have been affirmed without qualification. For, if the facts in the point were true, to wit, that there was light enough for the plaintiff to see the rails, and the snow did not obscure the same, and the plaintiff could have avoided them by going around them or crossing the street at another point, he was guilty of negligence per se, and it was not for the jury to say whether these facts constituted negligence. The inference of negli*144gence from such a state of facts, is one of law requiring binding instructions.

Jan. 7, 1889.

A man is as much bound to avoid a known danger, or one that can be known, on a public highway as anywhere else. Pittsburgh Southern Ry. *v.*Taylor, 104 Pa. 306; Erie *v.*Magill, 101 Pa. 616 ; Forks Twp. *v.*King, 84 Pa. 230; R. R. *v.*McClurg, 56 Pa. 297; Butterfield *v.*Forrester, n East, 60.

A plaintiff cannot recover when the omission to employ his senses contributes to the injury. B. & O. R. R. *v.*Whitacre, 35 Ohio St. 631; C., C. & C. R. R. *v.*Crawford, 24 Ohio St. 630 ; L. S. & M. S. R. R. *v.*Miller, 25 Mich. 274.

Defendant’s 5th point suggests the question whether defendant was responsible for the displacement of the rail on which plaintiff tripped and fell, if not displaced by the agency of the company, and such displacement was the immediate cause of the accident, as alleged in plaintiff’s declaration. The point should have been affirmed. Plaving refused it, this court must assume that the facts stated in the point would have been found by the jury. Pittsburgh Nat. Bank of Commerce *v.*McMurray, 98 Pa. 538. And if such were the facts, the defendant’s connection with the accident was too remote to create a liability. West Mahoning Township *v.*Watson, 112 Pa. 574; Ploag *v.*L. S. & M. S. R. R., 85 Pa. 293 ; Pa. R. R. *v.*Kerr, 62 Pa. 353.

Plaintiff’s testimony admits of no other inference than that, with ordinary care, he could have avoided the injury.

*A. M. Imbrie,*of *Marshalls & Imbrie,*for defendant in error.—

The 1st assignment is fully covered by the court below in the part of the charge enclosed in brackets.

This court will not say, as a matter of law, that the plaintiff was guilty of negligence because he “ could have avoided the pile by going around it,” when he did not know it was there, “ or crossing the street at some other point,” when there was nothing to warn him of danger.

To say, as a matter of law, that a passenger railway company . may store its rubbish in the street, and allow it to remain there without any liability for accidents likely to follow such conduct, is too monstrous to need reply.

We do not think this court will find the accident too remote to create a liability.

Per Curiam,

We must refuse to sustain the assignments of error in this case ; the company was clearly negligent, and that, as well as the question of the plaintiff’s default, was carefully and properly submitted to the jury.

Judgment affirmed.