Ingram v. Philadelphia

• Court: Pennsylvania Superior Court
• Writing for the Court: MORRISON, J.
• Citation: Ingram v. Philadelphia, 35 Pa.Super. 305 (Pa. Super. Ct. 1908)
• Decision Date: 28 February 1908
• Docket Number: 138-1907
• Parties: Ingram v. Philadelphia, Appellant

35 Pa.Super. 305

Ingram v. Philadelphia, Appellant

No. 138-1907

Superior Court of Pennsylvania

February 28, 1908

Argued October 23, 1907

Appeal by defendant, from order of C.P. No. 2, Phila. Co.-1906, No 4,745, overruling exceptions to report of referee in case of James E. Ingram v. City of Philadelphia.

Exceptions to report of David McCoach, Esq., referee.

The facts are stated in the opinion of the Superior Court.

The referee found in favor of the plaintiff for $ 500. Defendant appealed.

Error assigned was in dismissing exceptions to report of referee.

Joseph W. Catharine, assistant city solicitor, with him Charles W Boger, assistant city solicitor, and J. Howard Gendell, city solicitor, for appellant. -- Plaintiff failed to show the existence of a defect in the highway, for which the city is bound to respond in damages: Borough of Mauch Chunk v Kline, 100 Pa. 119; Dehnhardt v. Philadelphia, 15 W.N.C. 214; Blaine v. Philadelphia, 33 Pa.Super 177; Garland v. Wilkes-Barre, 212 Pa. 151; Wyman v. Philadelphia, 175 Pa. 117.

Having voluntarily entered upon the pavement in daylight with knowledge of its icy condition plaintiff was guilty of contributory negligence: Dehnhardt v. Philadelphia, 15 W.N.C. 214; Fleming v. Lock Haven, 15 W.N.C. 216; Haven v. Bridge Co., 31 W.N.C. 191; Winner v. Oakland Township, 158 Pa. 405; Conrad v. Upper Augusta Township, 200 Pa. 337; Bechtel v. Mahanoy City Borough, 30 Pa.Super. 135; Evans v. Philadelphia, 205 Pa. 193; Brown v. White, 206 Pa. 106; Steck v. Allegheny, 213 Pa. 573; Dwyer v. Port Allegheny Boro., 216 Pa. 22; Smith v. New Castle, 178 Pa. 298; Brown v. White, 206 Pa. 106.

Welch & Bluett, for appellee.

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

OPINION

MORRISON, J.

This is an action of trespass based on the alleged negligence of defendant. The parties waived a jury trial under the Act of May 14, 1874, P. L. 166, and the supplement thereto of May 4, 1889, P. L. 80, and referred the case to a referee, learned in the law, who heard the plaintiff's testimony (the defendant offering no testimony), and found in favor of the plaintiff, assessing his damages at $ 500. The learned court below dismissed exceptions to this report and entered judgment thereon, without filing an opinion and without giving any reasons whatever. We must, therefore, assume that the court had no better reasons in support of the judgment than those advanced by the referee. As the defendant offered no evidence, we are relieved from the operation of the rule that the person who sees the witnesses and hears them testify, is in a better position to determine their credibility and the weight of their evidence, than the appellate court. We will test this case by assuming that the plaintiff and his witnesses testified truthfully.

The plaintiff undertook to establish by his own testimony, and that of several other witnesses, that the city was negligent in permitting a sidewalk on one of the public streets to become so obstructed and slippery with snow and ice that, while using due care, he slipped and fell, receiving serious bruises and injuries which caused him much pain and prevented him from attending to his usual work for a long space of time. He was a carpenter and joiner and worked regularly at his trade. We have carefully read and considered all of the evidence, the report of the referee, and his opinion, and, in our judgment, the evidence entirely fails to sustain his findings of fact and conclusions of law. The evidence not only fails to establish the negligence of the defendant, but it fully warrants a finding that the plaintiff was guilty of contributory negligence. The evidence shows that the sidewalk, where the plaintiff fell, was covered with ice of from one-half to one inch in thickness, and that it was smooth and slippery and slightly wavy or corrugated, as the witnesses express it. That the uneven places were not more than one-half to one inch high, on any view of the testimony. But the plaintiff himself testified that the irregularity of the surface of the ice, where he fell, was not more than one-sixteenth of an inch. The plaintiff being a mechanic, it is fair to presume that he gave the testimony intelligently, and if there had been little hills and ridges of ice, he, or some of his witnesses, would have seen and described them.

The settled law of this state is that a municipality is not bound to remove smooth, slippery ice from a sidewalk where there are no hills or ridges which amount to an obstruction. The only exception to this rule is where the slippery condition is caused by the independent negligence of the municipality as in Manross v. Oil City, 178 Pa. 276, and Decker v. Scranton City, 151 Pa. 241. Upon this point see Blaine v. Philadelphia, 33 Pa.Super. 177, where we attempted to indicate our understanding of those cases. Their doctrine has no application to the case at bar, because there is no evidence in it that the slippery condition of the street was caused by the independent negligence of the city authorities.

The learned referee convinced himself, and the court below, " that the presence of hills and ridges is regarded rather as good evidence of such an accumulation of ice and snow as to render the city liable, than as a necessary element of liability." In this conclusion he is in flat conflict with the decisions of the Supreme Court and of this court. Starting with the fact that the waves or uneven places on the sidewalk were about one-sixteenth of an inch high, and at most, they could not have exceeded an inch in height, the referee undertook to construe the decisions so as to convict the defendant of negligence in not removing this practically smooth and slippery ice from the sidewalk. In this he attempted to do an impossible thing.

In Borough of Mauch Chunk v. Kline, 100 Pa. 119, Chief Justice Sharswood, delivering the opinion of the court, said, quoting from McLaughlin v. City of Corry, 77 Pa. 109: " A municipality cannot prevent the general slipperiness of its streets caused by the snow and ice during the winter, but it can prevent such an accumulation thereof in the shape of ridges and hills, as render their passage dangerous." In that case the evidence was that the snow and ice was rounding and it was from three to six inches thick; the center of the crossing was higher by an inch or two than it was on each side and yet this was held not to be such hills and ridges as would convict the defendant of negligence.

Dehnhardt v. City of Philadelphia, 15 W.N.C. 214, is in full accord with the doctrine of the above case. In that case the pavement was not as clear of ice as some of the other pavements which had received more attention, but it was free from ridges and hills, except such as were made by the footsteps of persons passing over it, and which in depth were about the thickness of a hand laid flat. The Supreme Court said: "...