Borough of Mauch Chunk v. Kline

• Court: Pennsylvania Supreme Court
• Writing for the Court: Sharswood
• Citation: Borough of Mauch Chunk v. Kline, 100 Pa. 119 (Pa. 1882)
• Decision Date: 20 March 1882
• Parties: Borough of Mauch Chunk <I>versus</I> Kline.

100 Pa. 119

Borough of Mauch Chunk versus Kline.

Supreme Court of Pennsylvania.

March 10, 1882.

March 20, 1882.

March 10th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Carbon county: Of January Term 1882, No. 64.

Edward Harvey (Wm. G. Freyman with him), for the plaintiff in error.—The narr. averred that the borough was negligent in permitting the crossing to be obstructed. There was no evidence that ridges of snow and ice were permitted to exist or remain on this crossing. The proof was that it was covered with ice and snow which was very slippery. Mere slipperiness arising from a smooth surface of ice and snow does not render a municipal corporation liable to one injured by falling, on the ground of negligence: McLaughlin v. Corry, 27 P. F. S. 109; Cook v. Milwaukee, 1 Amer. Rep. 183; Stanton v. Springfield, 12 Allen 566; Evans v. Utica, 25 Amer. Rep. 165; Luther v. Worcester, 97 Mass. 270; City of Providence v. Clapp, 17 How. 161; Collins v. Council Bluffs, 32 Iowa 326; Billings v. Worcester, 102 Mass. 329. There being neither presumption nor proof of negligence, the court should have directed a verdict for defendant: Railroad Co. v. Fries, 6 Norris 234.

Samuel A. Boyle and Allen Craig, for defendant in error.— There was distinct evidence that the borough authorities had permitted the ice and snow to accumulate at this crossing during the entire winter; and that there was a ridge of ice in the centre of the pathway, rounding to each side, which rendered the crossing dangerous, and caused the plaintiff's fall. This was ample to take the case to the jury, and the case is ruled by McLaughlin v. Corry, 27 P. F. S. 109.

Chief Justice SHARSWOOD delivered the opinion of the court, March 20th 1882.

It was said by Mr. Justice GORDON in McLaughlin v. City of Corry, 27 P. F. Smith 113, "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." Upon a careful examination of the evidence, and especially of the testimony of the plaintiff himself, we cannot find that his fall was owing to any hill or ridge, for the non-removal of which the borough ought to be responsible in damages. The learned judge very rightly charged the jury that the plaintiff must satisfy them that there was an obstacle other than the mere slippery condition and smoothness of the surface that made the passage over the crossing where he fell dangerous. The accident was at a crossing, which was constructed of two parallel rows of flat stones, with an iron plate at the approach to each pavement. The space between the flat stones was filled with cobble stones. The crossing was...