McIntyre v. City of Pittsburgh
| Decision Date | 06 January 1913 |
| Docket Number | 60 |
| Citation | 86 A. 300,238 Pa. 524 |
| Parties | McIntyre, Appellant, v. City of Pittsburgh |
| Court | Pennsylvania Supreme Court |
Argued October 29, 1912
Appeal, No. 60, Oct. T., 1912, by plaintiff, from judgment of C.P., No. 2, Allegheny Co., Jan. T., 1908, No. 359, for defendant n.o.v., in case of Jessie B. McIntyre v. The City of Pittsburgh. Affirmed.
Trespass to recover damages for personal injuries. Before HAYMAKER, J.
The facts are stated in the opinion of the Supreme Court.
Verdict for plaintiff for $2,000. The court subsequently entered judgment for defendant n.o.v. Plaintiff appealed.
Error assigned was in entering judgment for defendant n.o.v.
The assignments of error are overruled, and the judgment is affirmed.
Rody P Marshall, with him W. C. McClure, for appellant. -- It was the duty of the city to maintain the footwalk in a reasonably safe condition: Easton Boro. v. Neff, 102 Pa. 474; Kies v. Erie, 169 Pa. 598; Krug v. St Mary's Boro., 152 Pa. 30; Allentown v. Kramer, 73 Pa. 406; Kennedy v. Williamsport, 11 Pa.Super. 91.
Under the testimony, the case was for the jury: Bastian v. Philadelphia, 180 Pa. 227; Bank v. Carr, 15 Pa.Super. 346; Lerch v. Bard, 153 Pa. 573; Bucklin v. Davidson, 155 Pa. 362; Bellman v. Pittsburgh & A.V. Ry. Co., 31 Pa.Super. 389; Whitehouse v. Pittsburg Railways Co., 36 Pa.Super. 681.
B. J. Jarrett, Assistant City Solicitor, with him C. A. O'Brien, City Solicitor, and C. K. Robinson, Assistant City Solicitor, for appellee. -- The subject matter is one of discretion on the part of the city authorities, and the manner of exercise of that discretion cannot be made the basis of an action in negligence: Urquhart v. Ogdensburg, 91 N.Y. 67; Conlon v. St. Paul, 70 Minn. 216 (72 N.W. 1073); Gift v. Reading, 3 Pa. Superior Ct. 359; Horner v. Philadelphia, 194 Pa. 542; Robinson v. Norwood Boro., 27 Pa.Super. 481; Mason v. Philadelphia, 205 Pa. 177; Canavan v. Oil City, 183 Pa. 611; Wright v. Lancaster, 203 Pa. 276.
The steepness of the steps was not shown to be the proximate cause of the injury: Welsh v. Railroad Co., 181 Pa. 461; Philadelphia & Reading Railroad Co. v. Schertle, 97 Pa. 450; Lanning v. Pittsburgh Railways Co., 229 Pa. 575; Alexander v. Water Co., 201 Pa. 252; Bube v. Weatherly Boro., 25 Superior Court, 88; Mason v. Philadelphia, 205 Pa. 177.
Before BROWN, MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.
For the convenience of pedestrians in a hilly district, the City of Pittsburgh constructed two flights of steps on Oakley alley extending from Josephine street for a distance of about one hundred and twenty feet up to McCord street. The top flight was short, consisting of nine or ten steps, extending from a platform at the top to a platform at the foot of this flight. The plaintiff, a lady some sixty-two years of age, testified that while coming down this flight on the evening of November 23, 1905, when about half way down, she fell and received injuries for which she sought to recover damages in this suit. She charged the city with negligence in using the particular plan upon which the steps were constructed, they being as she contended, too steep and too narrow in the tread. At the trial the question was left to the jury, who found a verdict in favor of the plaintiff; but afterwards, upon a motion for judgment non obstante veredicto, the court below entered judgment for the defendant upon the ground that the evidence offered by the plaintiff to show negligence in the action of the city, was not sufficient to justify its submission to the jury. It was not contended, nor was there any evidence tending to show that the steps were out of order in any way. Criticism was directed entirely against the manner in which they were constructed. It was claimed that they were too steep, and that the treads were not wide enough. It was not shown that the method of construction was unusual, or that it differed from the ordinary plan found in such localities. It is the duty of the city to construct and maintain its public ways so that they shall be reasonably safe and convenient for ordinary use and travel. In performing this duty it is bound to use ordinary care and diligence, but it is not bound to provide against the possibility of an accident. Nor would a mere error in judgment in laying out a way, or as in this case, adopting a plan for building steps, be negligence. Certain difficulties growing out of the conditions had to be met. The steepness of the hillside and the limitations of space in the alley had to be considered, and these features called for the exercise of discretion and judgment upon the part of the municipal authorities in determining the plan upon which the steps were to be constructed. In the absence of evidence as to the conditions on the ground, and as to the requirements for the public service at that place, it was not for the...
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