Davis v. City of Wilkes-Barre

• Citation: 286 Pa. 488,134 A. 105
• Decision Date: 26 May 1926
• Docket Number: 99
• Parties: Davis v. Wilkes-Barre, Appellant
• Court: United States State Supreme Court of Pennsylvania

134 A. 105

286 Pa. 488

Davis v. Wilkes-Barre, Appellant

No. 99

Supreme Court of Pennsylvania

May 26, 1926

Argued April 13, 1926

Appeal, No. 99, Jan. T., 1926, by defendant, from judgment of C.P. Luzerne Co., May T., 1921, No. 124, on verdict for plaintiff, in case of Mary L. Davis v. City of Wilkes-Barre. Reversed.

Trespass for personal injuries. Before McLEAN, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $3,100. Defendant appealed.

Error assigned was, inter alia, refusal of defendant's motion for judgment n.o.v., quoting record.

Judgment of the court below is reversed and is here entered for defendant.

Edwin B. Morgan, City Solicitor, with him C. B. Lenahan, for appellant, cited: Nolan v. Pittsburgh, 272 Pa. 217; Lane v. Dickinson, 276 Pa. 306.

Frank A. McGuigan, with him Arthur H. James, for appellee, cited McMahon v. Transit & Light Co., 280 Pa. 199; Wolf v. Spencer, 282 Pa. 425; Fleming & Fleming v. Phila., 85 Pa.Super. 172; Greene v. Phila., 279 Pa. 389; Manross v. Oil City, 178 Pa. 276; Kauffman v. Harrisburg, 204 Pa. 26; Miller v. Boro., 66 Pa.Super. 394; Gross v. Pittsburgh, 243 Pa. 525.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

Appellee was injured by falling on a mound of ice on the street at the end of an alleyway. A sheet of snow possibly an inch thick covered the ice, which was eighteen inches long, four inches high, and six inches wide. The sidewalk was six feet wide at this point. The municipality, because of the length of time the ice was permitted on the street, was affected with notice of its presence.

Plaintiff lived in the locality for many years; that winter she frequently passed the place where the fall occurred. Plaintiff and her niece left home at about nine o'clock to attend church. The day was bright and clear. She was later joined by a neighbor and her daughter, but no one preceded her. Appellee had a clear view of everything, her eyesight was good, and nothing prevented her from seeing the condition of the street. Immediately before the party reached the ice, one of her friends in the rear warned her to be careful. This warning was scarcely given when Mrs. Davis stepped on the cake and fell, breaking her leg. She stated she could not see the ice because of the snow but later admitted that, had any attention been given to where she was walking, the hump, whether of snow or ice, could be seen. This is shown by the following testimony: "Q. Well, if you had looked down when you struck this lump of ice as you call it, -- you say it was four inches high, -- you could have seen that lump there, couldn't you? You could have seen it if you had looked, couldn't you? A. I suppose may be if I was looking at that one spot, but I didn't expect to fall there. Q. No, of course not, but if you had been looking where you were going and there was nothing to prevent your seeing that lump there as you describe it, four inches high and eighteen inches long, there wasn't anything to prevent your seeing it? . . . . A. I suppose not, if I was looking. Q. You suppose not, if you were looking? A. No." The case was submitted to the jury, who found for plaintiff, and the court below refused to grant judgment n.o.v. holding the evidence insufficient to show contributory negligence as a matter of law. This appeal follows.

While a pedestrian is not bound to keep his eyes fastened on the ground continually to discover possible dangers directly in his path (Lerner v. Phila., 221 Pa. 294), he is bound to use ordinary precautions in observing where and how he is going and all obvious impediments in his way. While one may assume that a pavement is in a reasonably safe condition (Bruch v. Phila., 181 Pa. 588; Goff v. Phila., 214 Pa. 172), such presumption falls in face of an open or exposed obstruction or danger. Where a ridge of ice is clearly discernible by one walking on the sidewalk, who has a reasonable way to avoid it, a failure to exercise ordinary precaution will preclude a recovery from the municipality for an accident occasioned by such neglect: Sickels v. Phila., 209 Pa. 113; Gryning v. Phila., 269 Pa. 277; Kleckner v. Central R.R. Co. of N.J., 258 Pa. 461. It is apparent from plaintiff's testimony she not only did not exercise her normal faculties while walking on the street but also failed to heed the warning of her companions. Here was at best a mound of snow rising up from the traveled way in front of her. There was ample space to pass around it; or did she wish to take the chance of stepping on it? If she did, it would be clearly at her own risk. It is useless to say the danger could not be seen, for the mound was obvious had the slightest precaution been exercised: Graham v. Phila., 19 Pa.Super. 292, 295, and cases relied on.

The law imposes on municipalities the nondelegable duty of keeping highways in a safe travelable condition. The burden placed on these governmental agencies is great, but they are not insurers of the safety of...