Burns v. City of Pittsburgh

• Decision Date: 25 November 1935
• Docket Number: 181
• Citation: 181 A. 487,320 Pa. 92
• Parties: Burns, Appellant, v. City of Pittsburgh et al
• Court: Pennsylvania Supreme Court

181 A. 487

320 Pa. 92

Burns, Appellant, v. City of Pittsburgh et al

No. 181

Supreme Court of Pennsylvania

November 25, 1935

Argued October 9, 1935

Appeal, No. 181, March T., 1935, by plaintiff, from judgment of C.P. Allegheny Co., Jan. T., 1933, No. 4103, in case of Thomas Burns v. City of Pittsburgh et al. Judgment affirmed.

Trespass for personal injuries. Before E. W. MARSHALL, J.

The opinion of the Supreme Court states the facts.

Compulsory nonsuit entered. Motion to take it off refused. Plaintiff appealed.

Error assigned was refusal to take off nonsuit.

Judgment affirmed.

Ben Paul Brasley, of Brasley, Rubin, Balter & Cole, for appellant.

E. V Buckley, with him William D. Grimes, City Solicitor, Anne X. Alpern, Thomas L. Jones and Pugliese & Evans, for appellee.

Before FRAZER, C.J., KEPHART, SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.

OPINION

MR. JUSTICE KEPHART:

This was an action to recover damages for injuries arising from a fall on a sidewalk in the City of Pittsburgh. Plaintiff's statement of claim and testimony fixes the place at 4860-62 Gloster Street. For approximately ten years plaintiff had resided at 4864 Gloster Street, adjacent to the alleged situs of his fall. At about midnight he was walking on Gloster Street with Mr. Callagher when, he states, "I felt my feet go into a hole and I was thrown forward." There was evidence of many depressions at this location, and estimates of their dimensions ranged from two to six inches in depth, from six to fourteen inches in width and from ten to fourteen inches in length. For some of them the municipality might be liable if an injury resulted therefrom, while it would not if an accident resulted from others.

The sole eyewitness, Mr. Callagher, placed the location of the accident at 4856 or 4858 Gloster Street, and he was corroborated by the testimony of another witness who observed plaintiff immediately following the accident as he was taken from the sidewalk. At this location there had existed an ice plant, whose trucks were accustomed to drive on and over the sidewalk. As a result, the pavement had been pressed down into a driveway about the width of a truck. It was described as a "depression." At its deepest point -- the point where the truck wheels usually traveled -- the depression was about six inches below the surface of the sidewalk which brought it flush with the cartway. It ascended gradually from this point and, at the inner edge of the sidewalk, was even therewith. Its sides were described as "tapering," and its bottom surface as "shaggy." Mr. Callagher testified that when he and plaintiff reached the depression, "he [the plaintiff] just seemed to vanish and fell over suddenly." This was the entire case on negligence, and from a judgment of nonsuit this appeal followed.

The only question presented is whether plaintiff presented sufficient evidence of liability to permit the case to go to the jury. In considering this nonsuit, the court will view the evidence in the light most advantageous to plaintiff, and will determine whether, under all the facts, the evidence was sufficient to permit the jury to find that the municipality negligently maintained its streets at the place of accident so as to cause plaintiff's injury. Though plaintiff was familiar with the unsafe condition of the sidewalk and there were street lights close at hand, as we view the question of negligence, it is unnecessary to discuss contributory negligence. The city had the duty of maintaining its streets in a reasonably safe condition for travel; and, to enable plaintiff to recover, he must establish a breach of that duty which caused his injury. Proof of injury alone, without more, or of the existence of the negligent condition without showing that it caused the injury complained of, is insufficient to establish a case of liability: Erbe v. P.R.T. Co., 256 Pa. 567, 570; Beck v. Germantown Cricket Co., 37 Pa.Super. 521; Menzies v. Interstate Paving Co., 94 N.Y.S. 492.

From the evidence it cannot be determined with reasonable certainty either the cause of plaintiff's fall or whether the cause showed actionable misconduct on the part of the city. Assuming, in accordance with plaintiff's testimony that the accident took place before 4860-62 Gloster Street there was no evidence to show that any of the described holes caused his fall and it may, in fact, have been caused by a defect for which the city could not be held responsible. In other jurisdictions it has been held that where a fall is ascribed to a defect in the sidewalk, plaintiff must describe with reasonable particularity and certainty the defect which caused the fall. See, for example, Hayden v. Jolene, 122 N.Y.S. 629. It is unnecessary to decide whether this is a practical and just...