Bailey v. Oil City

• Decision Date: 23 November 1931
• Docket Number: 143
• Parties: Bailey, Appellant, v. Oil City et al
• Court: Pennsylvania Supreme Court

157 A. 486

305 Pa. 325

Bailey, Appellant, v. Oil City et al

No. 143

Supreme Court of Pennsylvania

November 23, 1931

Argued September 29, 1931

Appeal, No. 143, March T., 1931, by plaintiff, from order of C.P. Venango Co., April T., 1930, No. 35, refusing to take off nonsuit, in case of Catherine Bailey v. Oil City et al. Affirmed.

Trespass for personal injuries. Before PARKER, P.J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take it off. Plaintiff appealed.

Error assigned was order refusing to take off nonsuit, quoting record.

The judgment is affirmed.

Maurice P. Breene, with him Quincy D. Hastings, for appellant. -- The court could not as a matter of law say that defendants were free from negligence and liability: Virgilio v Walker, 254 Pa. 242; Cohen v. Maus, 297 Pa. 454; Yentis v. Mills, 299 Pa. 25; Manross v. Oil City, 178 Pa. 276; McLaughlin v. City of Corry, 77 Pa. 109; Holbert v. Phila., 221 Pa. 266, 272.

A. B. Jobson and S. N. Mogilowitz, with them Edmond C. Breene, for appellees. -- The court properly granted the compulsory nonsuit: Blaine v. Phila., 33 Pa.Super. 177; Thomas v. New Castle, 96 Pa.Super. 251; Manross v. Oil City, 178 Pa. 276; Decker v. Scranton City, 151 Pa. 241; Garland v. Wilkes-Barre, 212 Pa. 151; McLaughlin v. Corry, 77 Pa. 109; Mauch Chunk v. Kline, 100 Pa. 119; Holbert v. Phila., 221 Pa. 266; Dehnhardt v. Phila., 15 W.N.C. 214.

We challenge the statement made in appellant's brief wherein it is stated that plaintiff contended in the lower court that defendants were not entitled under the record to ask for a nonsuit for the reason that they had waived such right in calling and examining Doctor Dickey before the jury.

Before WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.

OPINION

MR. JUSTICE WALLING:

On the evening of January 30, 1929, as the plaintiff, Catherine Bailey, was walking on the sidewalk of Spruce Street, in front of the property of the Borland Lumber Company, in Oil City, she was hurt by falling upon the ice-covered walk, on account of which she brought this suit against the city and property owner. The lower court entered a compulsory nonsuit and the refusal to take it off forms the basis of this appeal by plaintiff.

The action of the court was right. The sole negligence complained of in plaintiff's statement is that the defendants "then and there neglected to clean the sidewalk and keep the same clear of ice and snow, and negligently permitted snow and ice to accumulate on the sidewalk in front of the Borland Lumber Company's premises and thereby render the sidewalk slippery and dangerous as a public thoroughfare." Manifestly this did not state a good cause of action. A municipality is, in general, not liable for accidents resulting from the icy condition of its streets and walks. In Boro. of Mauch Chunk v. Kline, 100 Pa. 119, 121, Chief Justice SHARSWOOD, speaking for the court and quoting from McLaughlin v. City of Corry, 77 Pa. 113, says: "A municipality cannot prevent the general slipperiness of its streets caused by the snow and ice during the winter, but it can prevent such accumulations thereof in the shape of ridges and hills as render their passage dangerous." Hendrickson v. Chester City, 221 Pa. 120, holds that: "A city is not liable for personal injuries sustained by a fall on a sidewalk, where it appears that the accident was due to the general slippery condition of the street which occurs in all cities in wintertime." See also Garland v. City of Wilkes-Barre, 212 Pa. 151; Coleman et ux. v. City of Scranton, 99 Pa.Super. 3; Thomas v. City of New Castle, 96 Pa.Super. 251; Blaine v. Phila., 33 Pa.Super. 177. That this rule is also recognized in other jurisdictions, see note in 13 A.L.R., beginning at page 20. This is so because of the practicable impossibility of keeping cartways and sidewalks free from ice in this climate during the winter season. Rains followed by freezing often cover an entire city with ice in a few hours, as does the melting of snow during the day and freezing at night. It would therefore place an unreasonable and practically impossible burden upon a city to require the maintaining of its streets free from ice; this the law does not require.

It is, however, a city's duty to cause the removal from the walks of such substantial ridges or hills of ice or snow as constitute an obstruction to travel. See Llewellyn v. Wilkes-Barre, 254 Pa. 196; Gross v. Pittsburgh, 243 Pa. 525; Evans v. Phila., 205 Pa. 193; Wyman v. Phila., 175 Pa. 117. While the height and size of the ridge perhaps is not capable of exact definition, it must be at least such as to be generally observable as unsafe and likely to cause injury to travelers. The ridge must be shown to be of sufficient size to constitute a real danger to pedestrians. Something more must appear than the mere rough surface of the walk.

Waiving the defect in the statement of claim, the proof totally failed to show any material ridge of ice. Under the most favorable construction it merely was to the effect that there had been snow and ice on the walk for some time which had been so softened during the day of the accident as to make footprints therein, which as the ice hardened in the evening gave the walk an uneven surface. Possibly this would increase the danger of walking thereon, but the surface would not be such ridges of ice as the law condemns. A ridge is an elevation, not a mere uneven surface caused by foot prints. No case was called to our attention and we know of none where a municipality has been held liable merely because of such uneven surface. It would be as impossible for a city to keep its walks smooth in such weather as to keep them free from ice. In other words, the mere uneven surface, caused by walking upon ice as it freezes, does not constitute such an obstruction as the law condemns. It is incident to the...