Blaine v. Philadelphia

• Decision Date: 05 March 1907
• Docket Number: 61-1906
• Citation: Blaine v. Philadelphia, 33 Pa.Super. 177 (Pa. Super. Ct. 1907)
• Parties: Blaine v. Philadelphia, Appellant
• Court: Pennsylvania Superior Court

33 Pa.Super. 177

Blaine v. Philadelphia, Appellant

No. 61-1906

Superior Court of Pennsylvania

March 5, 1907

Argued October 5, 1906

Appeal by defendant from judgment of C.P. No. 5, Phila. Co.-1904 No. 3,734, on verdict for plaintiff in case of Margaret Blaine and David G. Blaine v. City of Philadelphia.

Trespass to recover damages for personal injuries. Before Martin, P J.

At the trial it appeared that Mrs. Margaret Blaine fell on an icy pavement on December 29, 1904, in the city of Philadelphia and sustained serious injuries to her wrist. It appeared that at the place of the accident there were no ridges, but merely a general slippery condition caused by rain and freezing during the previous twenty-four hours.

The court submitted the case to the jury.

Verdict and judgment for plaintiff for $ 700. Defendant appealed.

Error assigned was in refusing motion for judgment non obstante veredicto.

Reversed.

Thos. Raeburn White, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant. -- A municipality is not liable for the consequences of an accident caused by a general icy condition of the street: McLaughlin v. City of Corry, 77 Pa. 109; Mauch Chunk Borough v. Kline, 100 Pa. 119; City of Erie v. Magill, 101 Pa. 616; Dehnhardt v. Philadelphia, 15 W.N.C. 214; Syringer v. Philadelphia, 22 W.N.C. 132; Hanson v. Warren Borough, 22 W.N.C. 133; Decker v. Scranton City, 151 Pa. 241; Wyman v. Philadelphia, 175 Pa. 117; Manross v. Oil City, 178 Pa. 276; Garland v. Wilkes-Barre, 212 Pa. 151.

The accident to the plaintiff was caused by a mere slippery condition of the sidewalk, for which there can be no recovery.

The ice which caused the accident was formed the preceding night and no sufficient notice to the city was shown: Harrington v. City of Buffalo, 121 N.Y. 147 (24 N.E. 186); Taylor v. City of Yonkers, 105 N.Y. 202 (11 N.E. 642).

Walter Thos. Fahy, with him William W. Lucas and Thomas A. Fahy, for appellees. -- The case is ruled by the cases of Manross v. Oil City, 178 Pa. 276 and Decker v. Scranton, 151 Pa. 241.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

MORRISON, J.

This was an action of trespass for personal injuries sustained by Margaret Blaine on one of the sidewalks of the defendant. The plaintiffs having recovered, the defendant moved for judgment non obstante veredicto, which judgment was refused and judgment entered upon the verdict. The only assignment of error is, " the lower court erred in refusing the motion for judgment non obstante veredicto upon the whole record."

The controlling question is whether there was sufficient proof of negligence on the part of the city officials to warrant submitting the case to the jury.

The learned counsel for the appellees says the case is ruled by the cases of Manross v. Oil City, 178 Pa. 276, 35 A. 959, and Decker v. Scranton City, 151 Pa. 241, 25 A. 36. If his case, under the evidence, does not fall within the principle of those cases it is very clear that the learned court erred in refusing judgment for the defendant non obstante veredicto. The substance of the case of Decker v. Scranton City is clearly indicated by the following excerpt from the charge, by Judge McCollum: " A defective construction of the road in conjunction with such an accumulation of ice cast on the municipality the duty of removing the obstruction upon notice. If the water from the road and hydrant came upon and ran over the road as described in the testimony of Morgan and Boland and the ice complained of was formed by it, the city cannot escape responsibility on the plea that the ice had not 'so accumulated in hills and ridges as to form an obvious physical obstruction to travel.'" In that case it was found that the street had been in the condition in which it was on the day of the accident for from two to four weeks. It is very plain that the recovery was sustained by the Supreme Court, not because the ice formed in hills and ridges, but because the slippery condition of the street was attributable to the negligence of the city officials.

In Manross v. Oil City the controlling principle is not different from Decker v. Scranton City. In that case there was an accumulation of ice upon the sidewalk, not amounting to hills and ridges, but it was more than would have accumulated there from natural causes. The evidence tended to show that a gutter ran along the edge of the sidewalk and that it had been obstructed for such a length of time that the city was visited with constructive notice, and the negligence of the city officials in permitting the obstruction to remain caused the water to flow across the sidewalk and thus formed the ice upon which the plaintiff slipped and was injured. Upon this state of facts the defendant's counsel presented the following point: " The defendant city is not liable for an injury caused by reason of the slippery condition of the ice and snow upon its walks, unless such injury is caused by the accumulation of ice and snow into hills and ridges so as to render passage dangerous. Answer: Refused as a legal proposition. A city may be liable for an accident caused by the slippery condition of its streets caused by the negligence of its officials, even where the ice and snow do not form into hills and ridges."

The learned counsel for both parties to the case at bar seem to have some difficulty with Manross v. Oil City. The writer presided at the trial of that case and he then thought, as he does now, that the question raised by the above point was strictly in the case, and that the answer thereto rests on sound legal principles. However, it is unnecessary to discuss this matter, as the Supreme Court unqualifiedly affirmed that case, and it is in entire harmony with Decker v. Scranton City.

The cases cited by the appellant holding that there can be no recovery for an accident caused by the general slippery condition of the streets all rest on the principle that such slippery condition was not caused by the independent negligence of the city or borough officials. Among the cases cited by the appellant we find McLaughlin v. City of Corry, 77 Pa. 109, where it is said: " 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. It is no more difficult to remove or level such obstructions than it is those occasioned by the water and earth during the summer." Another case is Borough of Mauch Chunk v. Kline, 100 Pa. 119, where the Supreme Court reversed the court below for allowing a recovery because, " upon a careful...