City of Erie v. Magill

• Decision Date: 30 December 1882
• Citation: 101 Pa. 616
• Parties: City of Erie <I>versus</I> Magill.
• Court: Pennsylvania Supreme Court

Page 616

101 Pa. 616

City of Erie versus Magill.

Supreme Court of Pennsylvania.

December 6, 1882.

December 30, 1882.

December 6th 1882.

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

ERROR to the Court of Common Pleas of Erie county: Of July Term 1882, No. 35 Theo. A. Lamb, City Solicitor, for the plaintiff in error.— The evidence on behalf of the plaintiff below showed (1) that the place in question was dangerous to walk over; (2) that the plaintiff had full knowledge of such danger; (3) that although she could easily have avoided the danger she deliberately encountered it. In such case it is the duty of the court to instruct the jury, as matter of law, that the plaintiff cannot recover: Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Catawissa R. R. Co. v. Armstrong, 2 P. F. S. 282; Pittsburgh & Connellsville R. R. v. McClurg, 6 P. F. S. 294; McKee v. Bidwell, 24 P. F. S. 218 223; Goshorn v. Smith, 11 Norris 435; Baker v. Fehr, 1 Out. 70; Wharton on Negligence § 400; Durkin v. City of Troy, 61 Barb. 437.

L. S. Norton (with him J. W. Wetmore and M. E. Dunlap), for the defendant in error.—The evidence of plaintiff's knowledge of the dangerous condition of the locus in quo being referable to a time prior to the accident, the question of contributory negligence was properly submitted to the jury: Wharton on Negligence § 403; Hutchins v. Boston, 12 Allen 572; Whitaker v. Boylston, 97 Mass. 273; Reed v. Northfield, 13 Pick. 94; Garrigan v. Berry, 12 Allen 85; Snow v. Railroad Co., 8 Allen 441. It is only where the undisputed evidence is so clear that it does not admit of any other theory, that the court can decide that the plaintiff was guilty of contributory negligence per se: Penna. R. R. Co. v. Ogier, 11 Cas. 60; Catawissa R. R. Co. v. Armstrong, 2 P. F. S. 282; Penna. R. R. Co. v. Mc Tighe, 10 Wr. 316. It is not contributory negligence per se to pass over a public highway, even if known to be dangerous, provided due and reasonable care was used; Erie City v. Schwingle, 10 Harris 384; Humphreys v. County of Armstrong, 6 P. F. S. 204; Lower Macungie Township v. Merkhoffer, 21 P. F. S. 276; City of Lancaster, v. Kissinger, 11 W. N. C. 151; Weiss et al. v. Penna. R. R. Co., 29 P. F. S. 387.

Mr. Justice GREEN delivered the opinion of the court, December 30th 1882.

But a single question is presented by this case. It is, whether, upon the undisputed evidence, the plaintiff contributed by her own negligence to the injury she sustained. The learned judge of the court below charged the jury that "whatever may have been the condition of the street, or however dangerous, if the plaintiff knew of such danger and could have avoided it by turning aside, or by going on the opposite side of the street, but instead of doing so chose to run the risk of passing over the dangerous spot, and so encountered the hurt and injury complained of, she would be guilty of what is called in the law contributory negligence, and your verdict should be for the defendant." That this was a correct statement of the law applicable to the case cannot be doubted, and is not questioned by the learned counsel for the plaintiff. The counsel for the city asked the court to instruct the jury that under all the evidence the verdict must be for the defendant. This the court declined to do, but left to the jury the question of the plaintiff's knowledge of the condition of the street on the day of the accident, and her ability to avoid it, thus, "The question is for you. What is the fact? Did she know of its condition on that day, and could she have avoided it? If so, she cannot recover." This action of the court constitutes the subject of the only assignment of error on the record. After a patient examination of all the testimony in the case, we have reached the conclusion that the defendant's seventh point should have been affirmed, and a verdict for the defendant directed.

The plaintiff sustained her injury by slipping and falling upon a ridge of ice and snow extending across the sidewalk from the inside or building line of the street, to, and beyond the curb, and out into the street. This ridge, as described by the plaintiff and her witnesses, was from three to four feet high on the inside line, where some bill-boards were erected, and sloped down gradually all the way across the sidewalk and into the street. The plaintiff herself testified that it was three or four feet high next the bill-boards, that it was about eight inches above the sidewalk at the outer edge, and being asked the question: Q. "How high was the crown of the ridge above the walk, north and south of it?" A. "About eight inches high, I think, where I stepped upon it." She also said the ridge was about three feet across from one side to the other. The accident occurred in broad daylight, between three and four o'clock in the afternoon. Another of the plaintiff's witnesses testified, "I don't think it (the drift) was less than four feet deep near the bill-boards, and extended out into the street across the walk; I don't think it was less than two and a-half feet in the centre of the street; in the centre of the sidewalk; I think it extended for at least four feet into the street, and at an angle of not less than forty-five degrees."

It is not necessary to repeat the other testimony on this subject as it is all of the same character. It is manifest therefore that the obstruction on the sidewalk was plainly visible, was conspicuous both as to its extent and character, and necessarily obtruded itself upon the notice and attention of every passer along the walk. It was in no sense a slight or partially concealed defect such as might have escaped the notice of one walking on the pavement, moreover the plaintiff admits that she had often noticed the drift before the accident in going to her brother's across Tenth street. The evidence is equally conclusive and entirely undisputed as to the character, the dangerous character, of the obstruction. It was not a mere ridge of snow, but had become icy on the surface and very slippery. The plaintiff testified, "I stepped upon a ridge of ice that ran across the sidewalk and my feet both slipped and I was thrown with great force against a bank of ice behind me and injured me severely." And again, being asked, "What was the condition of the walk where you fell?" she said, "It was icy, the snow having drifted around those bill-boards, and made a bank, and it had melted and frozen together until it became icy." Another witness for the plaintiff, Mr. Dunning, said, "It was hard and compact" and "it was icy." Another witness, Mr. Moody, said, "At this time it was icy; I remember it from the fact that it was quite icy at the time," and also, "it was very slippery indeed." Magill, another of plaintiff's witnesses, testified that "there was a permanent drift along this walk from that time in January, certainly for a long time there was a very heavy drift of snow and ice." He also said, in reply to a question, "what was the surface?" A. It was comparatively smooth and icy; one had that feeling that footing was insecure on it; it was an old drift." Mrs. Magill, another of plaintiff's witnesses, said, "then the cold came freezing the tracks, leaving a very irregular icy surface on top of the drift." There was more testimony of the same kind and none whatever in contradiction. Had there been no other testimony on this subject, we think there was quite enough to charge the plaintiff with full knowledge of the extent, the nature, and also the character of the obstruction as hazardous and dangerous. But there was much more and equally conclusive testimony on that subject, also. Mr. Hoffman, a witness for the plaintiff, having said that the ridge was about two feet on the curbstone, and that the pitches of the ridge were very steep, was asked, "what called your attention to the condition of the walk at that time?" and answered, "because mornings when we went to work we always had to go on the street; we could not go on the sidewalk" and again, "we went to work in the morning and had to cross in the middle of the street." Moody, another of plaintiff's witnesses said, "it (the ridge) crossed the curbstone at this point, and the walk traveled by parties coming down Peach street, was shut off by this ridge, and the whole travel thrown into the street where the line of the drift crossed the curbstone," and again, "it was so bad that I would not walk on it, either in going down or coming back, and on that block I walked in the street." W. E. Magill, after describing the drift said, "therefore it was to my mind a risky place. I always felt a little risky going up or coming down." And again, "the south-east pitch made it a source of anxiety when I walked along; I always felt a little anxious about myself as I walked along there, and the inclination was to drop down on Peach street instead of taking the risk of going on Tenth street." Mrs. Magill said, "I noticed also from my window that persons in coming from below Tenth street would come to this drift and go around it even into the street; coming down street they often came to the top of this drift, and would stand, either way they turned it was slippery, and I have seen people stand there, and I have said to my sons that that walk was dangerous."

Rev. J. H. Edwards,...