Burns v. City of Bradford

• Decision Date: 05 January 1891
• Docket Number: 78
• Citation: 20 A. 997,137 Pa. 361
• Parties: MARIA BURNS v. CITY OF BRADFORD
• Court: Pennsylvania Supreme Court

20 A. 997

137 Pa. 361

MARIA BURNS v. CITY OF BRADFORD

No. 78

Supreme Court of Pennsylvania

January 5, 1891

Argued May 5, 1890

APPEAL bye DEFENDANT FROM THE COURT OF COMMON PLEAS OF McKEAN COUNTY.

No. 78 July Term 1889, Sup. Ct.; court below, No. 246 February Term 1885, C.P.

On February 2, 1885, Maria Burns brought case against the city of Bradford, to recover damages for personal injuries received by the plaintiff by a fall upon one of the sidewalks of said city. The declaration charged the city with negligence in suffering the sidewalk to be and remain in a dangerous and unsafe condition, in that a portion thereof was covered with snow and ice, and one side of it was upheaved several inches above the other. The defendant pleaded not guilty.

At the trial on November 20, 1888, the following facts were shown upon the part of the plaintiff:

One evening early in March, 1883, the plaintiff, then about thirty-three years of age, while passing along Pearl street in Bradford, slipped and fell upon the sidewalk, receiving permanent injuries to her right ankle. The walk upon which she fell was built of plank, and was about four feet in width. The plaintiff had passed over it twice, a few days prior to her accident, and at that time noticed nothing wrong with it. She testified that the evening on which she was injured was not very dark, and she thought it was a bright starlight night; that it had snowed a little in the afternoon, and had been a little muddy, but in the evening it got colder; that she went up the street on an errand and passed over this sidewalk without noticing any tip in it that as she was returning down the street, her foot slipped while upon the walk and she fell, breaking a bone in her ankle; that, while lying on the walk awaiting the coming of assistance, she observed the condition of the walk and noticed that it tipped toward the roadway of the street, the inside edge of it being over a foot higher than the edge on the side next the roadway; and that she had never noticed this, and had paid no attention to it, before her fall. The plaintiff testified, also, that she was unable to say whether there was any snow or ice upon the walk.

Mrs Elizabeth Fitzpatrick testified for the plaintiff that the witness saw the plaintiff, at the latter's house, on the evening of her injury, and was told by her where the accident had occurred; that the witness had passed over the same sidewalk, and had fallen at the same place, two or three weeks before the plaintiff's fall, and that the walk at that time tipped to the roadway, the side toward the fence being nearly a foot higher than the side toward the roadway. W. J. Alexander, a witness for the plaintiff, testified that he was one of the persons who helped to carry the plaintiff to her home after her injury, and described her situation and apparent condition just after her fall. On cross-examination he testified, further, that there was nothing about the sidewalk that attracted his attention to it as being dangerous in any way. Other testimony for the plaintiff tended to show that Pearl street was very much traveled.

The defendant recalled W. J. Alexander, and called L. D. Crandall, the other person who assisted in carrying the plaintiff home after her injury, and several other witnesses who were in the habit of using Pearl street. The testimony of these witnesses tended to prove that, at the time of the plaintiff's injury, the sidewalk did not tip toward the roadway in the manner described by her, but that it was nearly level from side to side, the outer edge of it having been raised by the frost a little higher than the edge next the fence, and the difference in level between the two not being more than three or four inches; that it was in good and substantial repair, and there was nothing about it to attract attention as unsafe; and that there were level spaces, sodded over, on each side of the planks, upon which there was room for a person to walk.

At the close of the testimony the court, OLMSTED, P.J., charged the jury respecting the duty of the city to keep the sidewalks in repair; submitted to them the disputed questions of fact arising upon the testimony; instructed them that if the walk was in the condition described by the plaintiff and Mrs. Fitzpatrick, and had been in that condition for two or three weeks, the plaintiff would be entitled to recover, unless she stepped on it with knowledge of its condition; stating for the guidance of the jury the rule governing the measure of damages. Among other points presented to and answered by the court, was the following point of the defendant:

1. There is no such evidence of actual or constructive notice of the dangerous condition of the walk as would render the city liable for the injury accruing thereon, and your verdict must be for the defendant.

Answer: We cannot affirm this point. It asks us to withdraw the case from the jury. We think there is some evidence in the case that should be submitted to the jury upon this question.

The jury returned a verdict for the plaintiff for $2,000. The plaintiff having remitted the sum of $800, in accordance with a condition prescribed by the court, a rule for a new trial was discharged, and judgment entered in favor of the plaintiff for $1,200. Thereupon the defendant took this appeal, assigning for error, inter alia:

4. The answer to the defendant's point.

The judgment is reversed.

Mr. G. L. Roberts and Mr. M. F. Elliott (with them Mr. D. H. Jack, City Solicitor), for the appellant:

1. There was no evidence at all of actual notice to the defendant that the walk was out of repair, and no evidence that the walk was in such condition that constructive notice could be presumed. From the testimony of the plaintiff herself it is evident that the walk, when she first passed over it on the evening of her accident, could not have been in the condition described by Mrs. Fitzpatrick; for no reasonable being could pass over a sidewalk four feet wide and tipped so that one side was a foot higher than the other, without noticing it. A walk in that condition would incline at an angle of from thirty to forty degrees. The fair inference from the plaintiff's testimony is that its...