Barth v. Klinck

• Decision Date: 03 January 1949
• Docket Number: 1737
• Citation: 360 Pa. 616,62 A.2d 841
• Parties: Barth et vir, Appellants, v. Klinck
• Court: Pennsylvania Supreme Court

62 A.2d 841

360 Pa. 616

Barth et vir, Appellants, v. Klinck

No. 1737

Supreme Court of Pennsylvania

January 3, 1949

Argued November 11, 1948

Appeal, No. 205, Jan. T., 1948, from order of Common Pleas No. 5, Philadelphia Co., March T., 1947, No. 4774, in case of Anna M. Barth et vir v. Edward H. Klinck. Order affirmed reargument refused January 19, 1948.

Trespass for personal injuries. Before CRUMLISH, J.

Compulsory nonsuit entered; plaintiffs' motion to take off nonsuit refused. Plaintiffs appealed.

Order affirmed.

Hanley S. Rubinsohn, with him Rubinsohn, Lodge, Shechtman &amp Zahn, for appellants.

Raymond A. White, Jr., for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES JJ.

OPINION

MR. PATTERSON, JUSTICE

This was an action in trespass brought by husband and wife for personal injuries to the wife. At the conclusion of the evidence on liability the court below entered a compulsory nonsuit, which it refused to strike off, and this appeal followed.

Anna M. Barth and Elwood Barth, appellants, are the owners of premises 416 Glenwood Avenue, Philadelphia. Pursuant to a contract previously made with the property owners involved, including appellants, Edward H. Klinck, appellee, a cement contractor, on May 17, 1946, began the work of tearing up and renewing the public sidewalk in front of premises 410 to 416 Glenwood Ave. On that date the work of breaking up and removing the old sidewalk was completed, and at the close of the day's work a board fence or barricade, three feet in height, was erected around the entire sidewalk area involved. In addition, a red light or lantern was placed on the sidewalk at each end of the barricade.

Returning to her home at 10:40 P.M., Mrs. Barth observed that the sidewalk repairs were under way and the enclosure, but not having her back-door key she climbed the three steps leading to premises 416 Glenwood Avenue, alongside the western end of the barricade, and stepped off, over the three-foot high barrier, into the fenced-off area. In so doing she caught her left heel in a hole or open gas vent within the enclosed area, fracturing her ankle. The night was dark. It was raining at the time, and the nearest street light was located on the other side of the street opposite premises 400 Glenwood Avenue.

On direct examination, the wife-appellant testified as follows: "Q. And what did you do about getting into your house? A. I didn't want to crawl under it [referring to the barricade] due to the fact that there was so much mud and rain, and I didn't want to jump over it, because inside of the railing it was deeper than it was in the middle of the street. I went up the three steps of 416. I braced myself with my left hand on this boarding there, and I dropped down toward the third step, and as I did I went into what I thought was a hole, and which I found out was an open gas vent." On cross-examination, she testified: "Q. Then it was dark where you wanted to step down? A. Yes, sir, the rain made it darker. Q. Made it darker? A. Yes Q. And you stepped down in the darkness? A. That's right. Q. You couldn't see what was there? A. That's right. Q. And you did know that there had been repairs or an excavation or something there, didn't you? A. I know it was being done... Q. And in the darkness, not being able to see anything, you stepped into this hole? A. That's right."

On the basis of this evidence the court below concluded, and properly so, that the wife-appellant was guilty of contributory negligence as a matter of law. As a rule darkness is, in itself, a warning to proceed either with extreme caution or not at all: Mogren v. Gadonas, 358 Pa. 507, 511, 58 A.2d 150. Accordingly, it is generally held, in the...