Easton v. Philadelphia

• Decision Date: 21 November 1904
• Docket Number: 110-1904
• Citation: 26 Pa.Super. 517
• Parties: Easton v. Philadelphia, Appellant
• Court: Pennsylvania Superior Court

26 Pa.Super. 517

Easton v. Philadelphia, Appellant

No. 110-1904

Superior Court of Pennsylvania

November 21, 1904

Argued October 21, 1904

Appeal by defendant, from judgment of C.P. No. 4. Phila. Co., Sept T. 1903, No. 1589, on verdict for plaintiff, in case of Maria Stille Easton v. Philadelphia.

Trespass to recover damages for injuries sustained by a fall on a sidewalk. Before Carr, J.

The facts appear by the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 450. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

Reversed.

C. E Bartlett, assistant city solicitor, with him J. L. Kinsey city solicitor, for appellant, cited: Shallcross v. Phila., 187 Pa. 143; Robb v. Connellsville Boro., 137 Pa. 42; Barnes v. Sowden, 119 Pa. 53; Sickels v. Philadelphia, 209 Pa. 113.

Charles L. McKeehan, for appellee, cited: Fee v. Columbus Boro., 168 Pa. 382; Glading v. Phila., 202 Pa. 324; Philadelphia v. Smith, 23 W.N.C. 242; Walton v. Colwyn Boro., 19 Pa.Super. 172; Nicholson v. Philadelphia, 194 Pa. 460.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

MORRISON, J.

In this action of trespass for personal injuries the plaintiff recovered a verdict and the court refused a new trial and entered judgment thereon.

There is but one assignment of error, to wit: " The learned court below erred in refusing to affirm the fifth point of the defendant below which was as follows: Under all the evidence the verdict must be for the defendant. Answer: That point is refused."

Counsel for the defendant states the only question involved is the refusal of the court to affirm said point. The contention is that the court erred in submitting the case to the jury for three reasons, to wit: (1) No negligence was shown on the part of the defendant; (2) the plaintiff failed to show that the injury was caused by the alleged defect or hole in the sidewalk, and (3) the plaintiff was guilty of contributory negligence.

An examination of all the evidence does not convince us that there was a lack of evidence as to the negligence of the defendant. At least, we think there was sufficient evidence upon this question to justify submitting it to the jury. If the defect in the sidewalk, described as a hole, about nine inches from the tree mentioned by the witnesses, was of such a character as to be dangerous and it had been there the length of time testified to by some of the witnesses, we cannot say, as a matter of law, that the city was not visited with constructive notice, and that it was not the duty of the proper officials to have repaired the walk at this point. As to the second question we think there was sufficient evidence on the part of the plaintiff and her witnesses, from which a jury could fairly infer that her injury resulted from stepping into the hole or defective place in the sidewalk at or near the roots of the tree. As to the third question, the contributory negligence of the plaintiff, we think the learned court erred in not giving a binding instruction to the jury that the plaintiff could not recover on account of her own contributory negligence.

The accident happened in broad daylight on one of the principal streets of Philadelphia. The plaintiff undertook to cross a street diagonally at a place not provided as a crossing for pedestrians. The tree referred to by the witnesses stood on the extreme edge of the sidewalk. The hole or defect was caused evidently by the growth of the roots of the tree which had displaced a few bricks. It appears that two or two and one half of these bricks had been carried away by some one thus leaving what is called the hole, into which the plaintiff thinks she stepped. This defect in the walk extended only about nine inches from the tree. If the plaintiff had been using her eyes and looking where she was going, as her duty required her to do, she must have seen the tree and the defect in the walk described by the witnesses. We cannot think that a person going off the sidewalk at this place, in daylight, could pass within a foot or nine inches of a tree of about a foot in thickness without seeing it and without observing the condition of the walk over which she had elected to pass. If she saw the defective place in the sidewalk and deliberately walked into it she was guilty of contributory negligence. If she did not see it she was guilty of negligence in not...