Mason v. City of Philadelphia

• Decision Date: 23 March 1903
• Docket Number: 184
• Citation: 205 Pa. 177,54 A. 773
• Parties: Mason, Appellant, v. Philadelphia
• Court: Pennsylvania Supreme Court

54 A. 773

205 Pa. 177

Mason, Appellant, v. Philadelphia

No. 184

Supreme Court of Pennsylvania

March 23, 1903

Argued January 7, 1903

Appeal, No. 184, Jan. T., 1902, by defendant, from judgment of C.P. No. 3, Phila. Co., Dec. T., 1896, No. 1092, refusing to take off nonsuit in case of George R. Mason v Philadelphia. Affirmed.

Trespass to recover damages for personal injuries. Before FINLETTER P.J.

The facts appear by 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.

We think the learned court below was justified in refusing to take off the nonsuit. The assignments of error are overruled and the judgment is affirmed.

Arthur S. Arnold, with him Edmund W. Kirby, for appellant, cited: Nudd v. Lansdowne Boro., 190 Pa. 89; Henry v. Williamsport, 197 Pa. 465; Plymouth Twp. v. Graver, 125 Pa. 24; Monongahela v. Fischer, 111 Pa. 9; Musselman v. Hatfield Boro., 202 Pa. 489; Scranton v. Catterson, 94 Pa. 202; Bruch v. Philadelphia, 181 Pa. 588; Ready v. Shamokin, 137 Pa. 98.

Thomas D. Finletter, with him Joseph P. Rogers and John L. Kinsey, for appellee, cited: Horner v. Philadelphia, 194 Pa. 542; King v. Thompson, 87 Pa. 365; Allegheny v. Zimmerman, 95 Pa. 287; Piollet v. Simmers, 106 Pa. 95; Stackhouse v. Vendig, 166 Pa. 582; Baran v. Reading Iron Co., 202 Pa. 274.

Before MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE POTTER:

The error assigned in this case is the entry of a compulsory nonsuit by the trial judge, and the refusal to take it off.

Plaintiff was injured by slipping into an open gutter, which was formed by two parallel lines of curbing, set about ten inches apart. The inner line was the ordinary curbstone at the edge of the sidewalk. The outer line was so placed as to support the raised grade of the street, at that point, which had there been suitably arranged for a driveway, or entrance from the street into a stable. The method of construction used was an ordinary and usual one, for an approach from the street to a stable. When it was so used, the gutter was covered with a plank, in order to make a smooth crossing for vehicles. The use of the premises for a stable was abandoned years ago, and dwellings were erected upon the site. The reason for maintaining the crossing over the gutter at this particular point then ceased and the plank seems to have been removed, leaving an open water way, which differed from the rest of the gutter along the street, only in the fact that it was for a short distance curbed upon both sides.

The evidence does not indicate that this arrangement was in any way unsafe, or that it constituted a nuisance to the public. It was not at a crossing of the street, but extended only along the front of one or two houses.

At the time of the accident, the plaintiff drove up to the place in the early evening, stepped out of his wagon upon the pavement, and intending to go to the rear of the wagon, stepped across the gutter with his left foot, and followed it with his right. A drizzling rain was falling at the time and freezing as it fell, which made the curbstone slippery. Plaintiff failed to notice that the gutter was curbed upon both sides, and did not step far enough to clear it with his right foot, but planted it so near the edge, that it slipped from the curb into the gutter in such a way as to catch and become wedged, so that in falling his leg was broken.

The facts of the case were undisputed, and the question of negligence was therefore for the court to decide. The trial judge held that the city was not bound to pave the street, or put in curbs in any particular way, and as there was neither allegation nor proof of any negligence in the way in which the curbing and paving was done, he entered a judgment of nonsuit.

We do not find any...