Kelchner v. Borough of Nanticoke

• Decision Date: 15 June 1904
• Docket Number: 245
• Citation: Kelchner v. Borough of Nanticoke, 58 A. 851, 209 Pa. 412 (Pa. 1904)
• Parties: Kelchner v. Nanticoke Borough, Appellant
• Court: Pennsylvania Supreme Court

58 A. 851

209 Pa. 412

Kelchner v. Nanticoke Borough, Appellant

No. 245

Supreme Court of Pennsylvania

June 15, 1904

Argued April 11, 1904

Appeal, No. 245, Jan. T., 1904, by defendant, from judgment of C.P. Luzerne Co., May T., 1900, No. 494, on verdict for plaintiff in case of R. F. Kelchner and Emma Kelchner v Nanticoke Borough.Reversed.

Trespass to recover damages for personal injuries.Before WHEATON, J.

The circumstances of the accident are stated in the opinion of the Supreme Court.

The following were the questions submitted to the jury and the answers thereto:

1.Were there ashes piled up on the street at the point where Mrs Kelchner fell?Answer: Yes.

2.If so, had they been there long, and how long?Answer: Three weeks prior to date of accident.

2 1/2.And had they been there long enough so that the borough officially ought to have known it?Answer: Yes.

3.If ashes were there, were they covered with ice?Answer: Yes.

4.Was there any soft snow on the ice?Answer: Yes.

5.Did Mrs. Kelchner step on the top or side of a pile of ashes concealed under ice, or ice and snow?And if so, were the ashes concealed by ice alone or frozen snow, or by ice and soft snow on top of the ice?Answer: We believe that Mrs. Kelchner stepped on the side of a pile of ashes concealed by ice and soft snow on top of the ice.

6.If there were ashes there in a pile, were they apparent to Mrs. Kelchner, did she see them, or could she have seen them if she had looked?Answer: No.

Or if she could not have seen the ashes, could she have seen the mound, if there was a mound, covered by ice or by ice and snow, as you shall find that fact to be?Answer: She could not have seen a mound inasmuch as it was covered with ice and soft snow.

7.If there were ashes there, was her fall caused by the ashes, or by a slippery condition of the street alone, or by the ashes and the ice which had formed on top of them, or by the ashes and ice and snow on top of them?Answer: By the pile of ashes concealed by ice and soft snow.

The jury returned a verdict for Emma Kelchner for $4,500 and for R. F. Kelchner $2,000, subject to the point reserved whether there was any evidence in the case entitling plaintiffs to recover.The court subsequently entered judgment for the plaintiffs on the verdict.

Error assigned was in entering judgment for the plaintiffs on the verdict.

The evidence in this case satisfies us that the doubt which the trial judge entertained as to the sufficiency of the evidence to be submitted to the jury, was well founded, and should have prevailed with him.The assignments of error are sustained, and the judgment is reversed, and is here entered for the defendant.

William S. McLean and Richard B. Sheridan, with them J. M. Fritz, for appellant.-- There was no evidence to go to the jury that the defendant had constructive notice that the pile of ashes was on the cartway of the street: Burns v. City of Bradford,137 Pa. 361;Rapho Twp. v. Moore,68 Pa. 404;Otto Twp. v. Wolf,106 Pa. 608;Rogers v. Williamsport,199 Pa. 450;Morris v. Philadelphia,195 Pa. 372;Beltz v. Yonkers, 148 N.Y. 67(42 N.E. Repr. 401).

There was no evidence then to go to the jury that the ash heap was so notorious as to be evident to all persons passing by: Burns v. Bradford,137 Pa. 361;Lohr v. Philipsburg Borough, 156 Pa. 246.

The ash heap was not the cause of the accident: Ahern v. Melvin,21 Pa.Super. 462;Rotsell v. Warren Borough,10 Pa.Super. 283;Boehm v. Bethlehem Borough, 4 Pa. Superior Ct. 385;Stager v. Ridge Ave. Passenger Ry. Co.,119 Pa. 70;Stringert v. Ross Township,179 Pa. 614;Cotton v. Wood,98 Eng. Com.LawRep. 566.

The special findings of the jury must stand unaided by inferences, intendment or admissions.They must find every fact necessary to show a good cause of action: Wallingford v. Dunlap,14 Pa. 31;Pittsburg, Fort Wayne & Chicago R.R. Co. v. Evans,53 Pa. 250;McCormick v. Insurance Co., 163 Pa. 184.

John M. Garman, with him Samuel L. Fedder, for appellees.-- The law imposes upon borough authorities the duty of the maintenance of the public streets so that they shall be reasonably safe to persons using them: McLaughlin v. Corry,77 Pa. 109;Erie v. Schwingle,22 Pa. 388;Fritsch v. Allegheny,91 Pa. 226;Kennedy v. Williamsport,11 Pa.Super. 91;Monongahela City v. Fischer,111 Pa. 9;Forker v. Sandy Lake Boro.,130 Pa. 123;Rick v. Wilkes-Barre, 9 Pa. Superior Ct. 399;Chilton v. Carbondale, 160 Pa. 463.

Before MITCHELL, C.J., DEAN, FELL, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE POTTER:

This action was brought to recover damages for alleged negligence on the part of the defendant in failing to keep the public highway clear of obstructions to foot travelers.The specific act charged was failure to level down a small heap of ashes which had been deposited in the roadway by some of the adjoining residents.It appears from the evidence that the placing of ashes in the wagonway in that vicinity was not regarded as detrimental under ordinary circumstances, as the road was cut down to hard rock, and the ashes tended to prevent slipping and added security to the foothold.But upon the night before the happening of the accident, for which recovery is here sought, rain and sleet fell, and froze as it fell, so that by morning the surface of the street generally was covered with ice and snow, and this particular little heap of ashes became a small mound, hardened and concealed from sight.

It is alleged that Mrs. Kelchner, while walking in the wagonway, owing to the slippery condition of the sidewalk, and in the act of passing from the roadway back to the sidewalk, stepped, without noticing it, upon the small conical mound formed by the frozen ash heap, and her heel slipped from its sloping side and she fell, and received severe injury.The ash heap was described as between five and six inches in height, and owing to the loose material of which it was composed could not ordinarily constitute an impediment in the roadway to the passage either of vehicles or foot travelers.In the nature of things, it would ordinarily soon be scattered by the passing feet of animals or the wheels of vehicles.It was only the condition of the elements and the falling of the rain and sleet which hardened it into a permanent form.It is apparent, therefore, that the inquiry as to the negligence of the borough authorities for permitting such a small heap of ashes to remain in the street, should be limited to the period during which alone, if at all, it could be properly considered as an impediment.This was only after it had, by the storm and frost, been changed from a harmless heap of soft material into a small but solid conical mound in the road.We find from the testimony that it existed in this shape only during the day upon which the accident occurred.No one seems to have noticed its existence or made any complaint concerning it.

The trial judge was in doubt as to whether there was any evidence in this case which ought to be submitted to a jury as establishing the defendant's negligence, and the plaintiff's right to recover.He said to the jury "Your verdict in this case will therefore be subject to a point of law, which I hereby reserve, as follows; whether there is any evidence in this case entitling the plaintiff to recover."He did not, however, allow the jury to find generally for the plaintiff or defendant under full instructions, but required the jury to find specifically as to certain questions of fact.The case was thus presented to the jury with directions to make separate answers to the questions propounded by the court.His instruction in this respect was as follows: "If you find all of the various matters in dispute which I have submitted to you in accordance with the plaintiff's contention (and I will send out a list of them, so that you may make a categorical answer to these propositions of...