Appeals, Nos. 88 and 109, March T., 1950, from judgments of Court of Common Pleas of Beaver County, Sept. T., 1949, No. 54, in case of Harry Brown v. Beaver Valley Motor Coach Company et al. Judgment (Appeal No. 109) affirmed; judgment (Appeal No. 88) reversed.
Thompson Bradshaw, with him Bradshaw & Panner, for Beaver Valley Motor Coach Company, appellant.
Leonard L. Ewing, with him John D. Ray and Reed, Ewing & Ray, for Donatelli Construction Company, appellant.
Earl J. Schermerhorn, with him Smith & Schermerhorn, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
Plaintiff, Harry Brown, brought this action in trespass against Beaver Valley Motor Coach Company (hereinafter called the Bus Company) and Donatelli Construction Company (hereinafter called Donatelli) to recover damages for personal injuries resulting from a fall allegedly caused by the concurrent negligence of both defendants. The jury returned a verdict against both defendants in the sum of $5000. Judgment was entered on the verdict and both defendants appealed, each alleging that he was not negligent and that plaintiff was guilty of contributory negligence.
During August of 1947, Donatelli was reconstructing State Highway Route 88 in the Borough of Baden, Beaver County. When the work was started the road was barricaded to all vehicular traffic but because this
worked a hardship on the local residents, Donatelli granted the Bus Company permission to run its buses through the area under construction and gave the same privilege to owners of private vehicles residing in that area.
Plaintiff was a regular passenger of the Bus Company, riding to work each afternoon and returning home late at night. Prior to August 18, 1947, he had always been discharged on his homeward journey at the intersection of Route 88 and Virginia Avenue in the Borough of Baden. On that date, according to plaintiff's testimony, the bus stopped, for no apparent reason, two hundred to two hundred and fifty feet short of the regular bus stop at Virginia Avenue and eight or ten feet out from the curbline. Because it was 11:30 P.M. on a dark night, he did not realize until after the bus had moved on that he had been let off the bus at other than its regular stopping place. He waited until his eyes became adjusted to the darkness and then started directly toward the sidewalk, feeling his way cautiously over the uneven ground. The curb had been removed in the afternoon after plaintiff had gone to work but a pile of dirt remained at the site of the old curb. When he attempted to step onto that dirt his foot struck a board and he fell against a piece of pipe. As he was getting up from that fall he tripped over the board and fell back into an open manhole in the street. These falls resulted in the serious and permanent injuries of which he here complains.
Both Donatelli and the Bus Company argue that plaintiff could have walked up the road to Virginia Avenue and there reached the sidewalk in safety. They contend that when he chose instead to walk over the mounds of dirt he was testing a known danger and was therefore guilty of contributory negligence. Although the rule which defendants ...