Llewellyn v. Wilkes-Barre

• Decision Date: 23 May 1916
• Docket Number: 312
• Citation: Llewellyn v. Wilkes-Barre, 254 Pa. 196, 98 A. 886 (Pa. 1916)
• Parties: Llewellyn v. Wilkes-Barre, Appellant
• Court: Pennsylvania Supreme Court

98 A. 886

254 Pa. 196

Llewellyn v. Wilkes-Barre, Appellant

No. 312

Supreme Court of Pennsylvania

May 23, 1916

Submitted April 10, 1916.

Appeal, No. 312, Jan. T., 1915, by defendant, from judgment of C.P. Luzerne Co., Dec. T., 1912, No. 778, on verdict for plaintiff, in case of George J. Llewellyn v. City of Wilkes-Barre. Affirmed.

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

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $4,924.83 and judgment thereon. Defendant appealed.

Errors assigned were instructions to the jury, rulings on evidence the refusal of a continuance and answers to points.

The judgment is affirmed.

Charles F. McHugh, submitted for appellant.

John T Lenahan, Charles B. Lenahan and Frank A. McGuigan, submitted for appellee.

Before POTTER, STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiff sued to recover damages for personal injuries received by a fall on a sidewalk of one of the principal residential streets in defendant city upon which there was a ridge of ice he was prevented from seeing by reason of a light fall of snow a short time before the accident. There was a verdict for plaintiff, from which defendant appealed.

The fifth assignment of error raises the question whether or not the charge of the court as to constructive notice to defendant, of the defective condition of the pavement, was erroneous, and also if there was sufficient evidence of constructive notice to warrant submission of the case to the jury. That there was a ridge of ice on the sidewalk at the time of plaintiff's fall, which ran longitudinally about half way between the curb and the house line, variously estimated to be from five to eighteen inches wide, and several inches thick, is not denied. Plaintiff's witnesses testified the accumulation of ice had been there for four or five days immediately preceding the accident, while defendant's witnesses not only failed to contradict this testimony but expressly confirmed it, the police officer, called by defendant, who patrolled the street admitting the ice might have been there for a longer time than a week.

The portion of the charge excepted to, with respect to constructive notice, was as follows: "Where the condition of the street has existed long enough to give a presumption of notice by (to) the authorities of the city that the condition exists, then the city has such notice as a matter of law because the streets are open and all people passing up and down the streets must see their condition officials passing up and down the streets must see their condition, and policemen passing upon their beats must see their condition." Defendant contends this language was a positive direction to the jury that city of officials passing along the streets were bound to know the condition of the sidewalk. This is precisely the measure of their duty if the defect has existed for such length of time that with proper care and inspection they should have known the dangerous condition. In other parts of the charge constructive notice was further explained by the court, and the jury's attention called to the fact that in a thickly populated section of the city less time would be required to create a constructive notice than in sparsely settled districts. After referring to the testimony of witnesses as to the length of time the obstruction existed the court also charged that the jury should, from the evidence, decide whether the ridge of ice had remained on the sidewalk for a sufficient time, and was of such character as to give notice to the city of its existence, and time for its removal. The particular part of the charge objected to was as favorable to defendant as could be asked. In fact, it seems more favorable to the municipality than was the charge of the court in Rosevere v. Borough of Osceola Mills, 169 Pa. 555, where the trial judge, in answer to a point, charged that it was "not a question whether all passersby actually noticed the defect, but whether it was noticeable." This court in approving the action of the lower court in that case said (page 563): "The rule as to the defect being of such a character as to be of itself notice to the authorities, does not require that every passerby did actually notice it, but that they might have noticed it if they had consciously seen it. That is what would be indicated by the word 'noticeable,' capable or susceptible of being noticed. Several persons had testified positively to the fact of having seen the hold for some time before the accident. A number of others had testified that, having good opportunities of observation, they did not see it. All of which might be perfectly true and yet the hold might have been there. Now if the hole was of such a character as to be noticeable to those who looked, it is all the law requires and that is all the court said." To sustain this assignment defendant relies upon Burns v. Bradford City, 137 Pa. 361. In that case there was practically no evidence tending to show the condition of the sidewalk previous to the accident and the testimony of plaintiff as to its condition at the time of the accident was not sustained by other evidence. According to plaintiff's...