Lerner v. City of Philadelphia
| Decision Date | 11 May 1908 |
| Docket Number | 104 |
| Citation | 70 A. 755,221 Pa. 294 |
| Parties | Lerner, Appellant, v. City of Philadelphia |
| Court | Pennsylvania Supreme Court |
Argued March 30, 1908
Appeal, No. 104, Jan. T., 1908, by plaintiffs, from order of C.P. No. 1, phila. Co., June T., 1902, No. 2,885, refusing to take off nonsuit in case of Max Lerner and Sarah Lerner, his wife, v. City of Philadelphia. Affirmed.
Trespass to recover damages for personal injuries. Before KINSEY, J.
The facts are stated in the opinion of the Supreme Court.
The court entered a compulsory nonsuit which it subsequently refused to take off.
Error assigned was refusal to take off nonsuit.
The nonsuit was properly entered and the judgment is affirmed.
Eugene Raymond, for appellants. -- The case was for the jury Becker v. Philadelphia, 212 Pa. 379; McHugh v Kerr, 208 Pa. 225; Glading v. Philadelphia, 202 Pa. 324; Fitzpatrick v. Riley, 163 Pa. 65.
Harry T. Kingston, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee. -- The present case appears to be ruled by: Robb v. Connellsville Boro., 137 Pa. 42; Stackhouse v. Vendig, 166 Pa. 582; Sickels v. Phila., 209 Pa. 113; Easton v. Phila., 26 Pa.Super. 517.
Before MITCHELL, C.J., MESTREZAT, POTTER, ELKIN and STEWART, JJ.
We have gone very far in holding municipalities liable for injuries received in consequence of defective pavements, but never yet so far as to excuse the pedestrian using the pavements from the duty of exercising ordinary care. When one abandons the use of his natural senses for the time being and chooses to walk over a pavement by faith exclusively, and is injured because of some defect in the pavement, he has only himself to blame. It is, of course, the duty of municipalities to see that the pavements along its streets are reasonably safe for public use, but they are not insurers of the safety of those using them. It is impracticable, if not impossible, to maintain these pavements in such condition as to make them entirely free at all times from possibility of accident to those using them. Irregularities in grade, unevenness in surface, sharp depressions at crossings, accidental displacement of brick or stone, and many other things which may or may not be defects, but yet sufficient in themselves to cause accident to the unwary, are so common and usual that it is the duty of the pedestrian to be observant of such fact, and not to walk blindly. If through no fault of his he is prevented from seeing the defect, obstruction or whatever it may be, which it was the duty of the municipality to have corrected, and injury results to him, he is entitled to claim compensation. When the accident occurs in broad daylight, in consequence of an open and exposed defect in the sidewalk, the burden rests upon the party complaining to show conditions outside of himself which prevented him seeing the defect, or which would excuse his failure to observe it. If such conditions exist, there is excuse for walking by faith. When they do not exist, the law charges the party with filure to do what was required of him. And that is this case. The accident occurred at half past four o'clock in the afternoon of an April day. The defect in the pavement was the displacement of some bricks. Into the depression caused by this displacement plaintiff stepped, with the result that she fell and injured herself. In bringing her action she assumed the burden of exhibiting a case clear of contributory negligence. Having testified that she stepped into the depression without having observed it, and having shown conditions which should have been sufficient, nothing intervening, to secure one exercising ordinary care from such accident, she would be entitled to recover only as she explained in a way consistent with ordinary care on her part, how and why she failed to see what was directly before her. Failing in this, it could not be said that her injury resulted exclusively from the defendant's negligence. It was insisted upon by counsel representing her that she was prevented from seeing the depression into which she stepped, by the crowded condition of the pavement at the time. No other explanation is attempted. Unfortunately for the plaintiff this explanation advanced by counsel is without support in the...
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