Calhoon v. Pittsburgh Coal Company
Decision Date | 27 October 1937 |
Docket Number | 47-1937,46-1937 |
Citation | 128 Pa.Super. 582,194 A. 768 |
Parties | Calhoon et al. v. Pittsburgh Coal Company et al. (Alexander, Appellant) |
Court | Pennsylvania Superior Court |
Argued April 23, 1937
Appeals from judgments of C. P. Beaver Co., Sept. T., 1935 No. 19, in case of Mrs. Bessie M. Calhoon et al. v Pittsburgh Coal Company et al.
Trespass for personal injuries. Before Wilson, J.
The facts are stated in the opinion of the Superior Court.
Verdicts for wife plaintiff in sum of $ 300 and for husband plaintiff in sum of $ 214, and judgments thereon. Defendant appealed.
Error assigned, among others, was refusal of judgment n. o. v.
Judgments reversed.
Frank E. Reed, of Bradshaw, McCreary, Stevenson & Reed, for appellant.
J. Leonard Solomon, with him Effie M. Solomon and Swaney & Lucas, for appellees.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.
Bessie M. Calhoon and her husband, Thomas F. Calhoon, brought an action for trespass against the Pittsburgh Coal Company, William Semple Ferry Company and E. P. Alexander, for personal injuries suffered by the wife, caused by her slipping on ice on the roadway leading to the ferry landing at Georgetown on the Ohio River, in Beaver County, Pa. At the trial, it appeared that the Pittsburgh Coal Company was the owner of the land and E. P. Alexander was operating the ferry between the Borough of Georgetown and Smith's Ferry, under an agreement with the William Semple Ferry Company. Points for binding instructions, submitted by all defendants, were refused and the case was submitted to the jury, which found for each plaintiff against all of the defendants. Motions for judgment n. o. v. by the defendants were granted as to the Pittsburgh Coal Company and William Semple Ferry Company, but refused as to E. P. Alexander, and judgments were entered on the verdicts against him. From these judgments, he has appealed.
On January 28, 1935, Bessie M. Calhoon, accompanied by her son, Norman, fourteen years of age, left her home in the Borough of Georgetown, at about 6 P. M., to attend a concert at the Midland High School. The evening was clear and cold, and snow and ice were upon the sidewalks and highways. The Borough of Georgetown is situated on a hill overlooking the Ohio River. To reach Midland, it was necessary for plaintiff to board the ferry operated from Georgetown, on the east bank of the Ohio River, to Smith's Ferry, on the west bank. Plaintiff walked about three blocks to the top of the hill leading to the ferry, when she left the highway, took a shortcut and walked down steps provided by the ferry company. At the bottom of the steps, she again entered upon the highway, which was a continuance of the one which she had left at the top of the steps. This highway leads to the platform of the ferry at the water's edge. From the foot of the steps, the land slopes to the water's edge, a distance of seventy-five feet. Approximately fifteen or twenty feet from the edge of the apron of the ferry, plaintiff, who was being assisted by her son, slipped and fell on the icy roadway, sustaining the injuries for which suit was brought. At this point, the roadway is built with cobblestones. This highway is on Pennsylvania Legislative Route 278 and Traffic Route 168, as fixed by the Secretary of Highways, and is the only one crossing the Ohio River within five miles of Smith's Ferry and Georgetown.
Appellant's main contentions are: First, that it was not liable for the icy condition of a state highway; and, second, the plaintiff was guilty of contributory negligence.
Counsel for appellees earnestly argues that the testimony is conflicting as to whether the accident took place on the public highway or a private right of way. As we view this record, the accident occurred on the public highway; the case was submitted to the jury on that theory, and was so considered by the court below in disposing of the motions for judgment n. o. v.
In her examination in chief, Mrs. Calhoon testified: On cross-examination: When asked to point out in an exhibit, she was unable to positively fix where she fell, and testified: Concluding the cross-examination on this point, the record is as follows:
Norman Calhoon testified: This witness indicated upon a photograph, by an X mark, the point where his mother fell, which from our examination was within the traveled roadway. Conceding to appellees every favorable inference which can fairly be deduced from the language, "along the roadway" and "along the left side of the road," it would be an unwarranted inference to find, as thus described, that the accident occurred upon a private right of way.
The court below, in dismissing appellant's motion, based its decision chiefly on the ground that the so-called highway, used by appellant, at the water's edge as a landing, was in fact private property. He said in part:
The fallacy in the statement of the learned judge of the court below, above quoted, is in judicially noticing some facts without regard to the evidence in the case. Mr. Calhoon, on cross-examination, testified he remembered that the roadway and the ferry had been in use since his boyhood days -- a period of about fifty years. He also testified he had used the road and ferry going to and from his daily work for the past seventeen years, during which time the roadway was in constant public use. The roadway was in existence as a public highway at least as early as 1911, for it was in that year the state legislature designated the route, of which this roadway and ferry line are a part, as a state highway. The roadway was probably used by the public for many years before that, as the court below stated that the ferry line had been in constant operation for the past century. This constant use of the roadway by the public, continuing for well over twenty-one years with the apparent consent of the...
To continue reading
Request your trial-
Lovelace v. Hightower.
...McCue v. Berge, 385 Ill. 292, 52 N.E.2d 789; City of Santa Clare v. Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303; Calhoon v. Pittsburgh Coal Co., 128 Pa.Super. 582, 194 A. 768; North Beach v. North Chesapeake Beach Land & Improvement Co., 172 Md. 101, 191 A. 71; La Chappelle v. Jewett City, ......
-
Toombs v. Manning
...to provide safe means of passage between the public highway and the carrier's means of transportation." Calhoon v. Pittsburgh Coal Co., 128 Pa.Super 582, 589, 194 A. 768, 771 (1937); see also Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985)(cou......
-
Toombs v. Manning
...trolley or other vehicle. Acton v. Pennsylvania-Reading Seashore Lines, 138 Pa.Super. 605, 11 A.2d 203 (1940); Calhoon v. Pittsburgh Coal Co., 128 Pa.Super. 582, 194 A. 768 (1937). See also Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, 507 Pa. 204, 489 A.2d 1291 (1985); E......
-
Hair v. Ference
... ... railroad company, sustained and judgment entered in favor of ... defendant railroad ... and Dickie, Robinson & McCamey, for Pittsburgh & Lake Erie ... R.R. Co., appellee ... Before ... MAXEY, ... 485, 491, 7 A.2d 590; Calhoon v. Pittsburgh Coal ... Company, 128 Pa.Super. 582, 587, 194 A. 768. And, ... ...