Miller v. City of Philadelphia

• Decision Date: 23 March 1942
• Docket Number: 259,260
• Citation: 25 A.2d 185,345 Pa. 1
• Parties: Miller et al., Appellants, v. Philadelphia
• Court: Pennsylvania Supreme Court

25 A.2d 185

345 Pa. 1

Miller et al., Appellants, v. Philadelphia

Nos. 259, 260

Supreme Court of Pennsylvania

March 23, 1942

Argued January 13, 1942

Appeals, Nos. 259 and 260, Jan. T., 1941, from judgments of C.P. No. 6, Phila. Co. (tried in C.P. No. 1), Sept. T., 1938 No. 361, in case of George H. Miller, Jr., by his next friend and father, George H. Miller, Sr., and George H. Miller, Sr. and Agnes M. Miller, in their own right, v. City of Philadelphia. Judgment affirmed.

Trespass for personal injuries. Before KUN, J.

Compulsory nonsuit entered. Motion to take it off refused. Plaintiffs appealed.

Judgment affirmed.

Francis M. McAdams, with him Frank J. Eustace, Jr., for appellants.

James Francis Ryan, with him John J. K. Caskie, Assistant City Solicitors, and Francis F. Burch, City Solicitor, for appellee.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. LINN, JUSTICE

These appeals are from the refusal to take off judgments of non-suit in an action to recover for injuries sustained by the minor plaintiff in Fairmount Park. On Saturday morning, May 21, 1938, the minor, aged ten and a half years, was one of a party of ten members of a Sunday School class taken by their teacher, with the consent of the minors' parents, to the Park. They entered from Rex Avenue, a city street in the Chestnut Hill section, and walked up a bridle path in the Park to the top of the slope, commonly known as Indian Rock, on which the monument to the Indian Teddyscung stands. They did not return by the bridle path but by a short trial leading down to the Rex Avenue bridge over Wissahickon Creek.

This section of the Park ^[1] was acquired pursuant to section 2 of the Act of April 14, 1868, P.L. 1083, 53 PS section 6634, providing, in part, "and it shall also be the duty of said park commissioners to appropriate the shores of the Wissahickon creek, on both sides of the same, from its mouth to the Paul's Mill road, and of such width as may embrace the road now passing along the same; and may also protect the purity of the water of said creek, and by passing along the crest of the heights which are on either side of said creek, may preserve the beauty of its scenery." The road referred to in that extract extends along the right shore of the Wissahickon; the Indian monument is on one "of the heights" along the left side. A footway or trail extends from and along the left bank of the stream at an elevation of perhaps 40 feet at the point where the Rex Avenue bridge crosses the stream, near which the minor plaintiff was injured. This path or trail, described as about six feet wide, is reached from Rex Avenue by ascending a solid stone and concrete stairway of about 30 steps. From this path, at a distance of about ten feet from the top of the stone stairway furnishing access to it, a rough footway or trail leads up a slope about 140 feet long to another path approaching the monument. This trail is about five feet wide except where narrowed by a large tree. It was while descending this trail that the minor plaintiff lost his balance, ran down some fifty feet, then fell on the level way or trail, mentioned above as constructed parallel to the left bank of the stream, and rolled some 23 feet, past trees and bushes and fell down to the side of the stream. Defendant's negligence, averred in various phrases, may be summarized as failure to provide a reasonably safe way or trail to descend the slope, or a more securely constructed series of stairs or steps, and failure to have a guard rail or fence along the trail on the slope. The trail from the path at the bottom to the path at the top had once been, in the words of a witness, an "old fire trail." ^[2] The Indian monument was constructed in 1902. The natural surface of the slope was largely stone or stone outcrop, with a more or less thin layer of earth usually found in such surroundings. Apparently to preserve the wild or natural appearance of the Park, and at the same time to afford footing for pedestrians using the trail, the defendant utilized the natural outcrop of stone supplemented by logs and stones, the whole forming an irregular but substantial way for ascending or descending the trail. A witness said there were 49 such "steps or platforms." We prefer the word trail as more accurately describing the way; the appellants call it a stairway. ^[3] It was not a stairway in the ordinary sense of the word, but for present purposes, it is immaterial which term is used, the legal result depending on the fact and not on the name. The evidence shows that the trail had been in use many years and plaintiffs proved that it had been constantly inspected and cared for and that the defendant's representative in charge of this section of the Park inspected it the day before the accident. This witness, Albert E. House, testified on direct examination: "A. From February, 1937 until September, 1938 I covered that path every day in the week, five days a week, rain or shine. Q. Right, and that means that you walked up the middle stairway during that period of time? A. Sometimes up and sometimes down. While we were constructing the bridle path, sometimes I would walk on the bridle path, and sometimes not. However, I would go down or go by the bridle path at some time or other every day." ^[4]

When the party reached this slope, on returning from the monument, the teacher told them to proceed in pairs. The minor plaintiff stopped at the top to tie his shoe laces with the result that he, the teacher and a boy named Ford, were the last to descend. When part way down, apparently because a large tree narrowed the trail, plaintiff left the side of and walked behind the teacher, while Ford remained with the teacher. The teacher's first knowledge of the accident appears in his evidence that he "suddenly saw George Miller running about three feet in front of me, and about three feet to the right of the stairs, and the course that he traveled was parallel with the steps, and as he neared that bottom pathway he was veering to his right. When I first saw George Miller running he was running very fast, and as he continued down the hill his speed became greater until it seemed to me that he was no longer running, but he was plunging. Q. What was that word? A. Plunging. His body was forward and his hands were waving wilding about his head. He was tripping and stumbling as he approached the lower pathway, and I believe it was at the lower pathway that he left his feet entirely, and the last I saw George was when he was going over the cliff feet first. All this took just a few seconds, to me, and I had no chance of doing anything for the boy." He ran a distance, given in the evidence, as 56 feet 6 inches until he came to the horizontal way (mentioned above as extending along the left side of the creek) where he fell and then rolled 23 feet to the point from which he fell into the stream bed. The minor plaintiff testified: "That stone that I stepped on was part of the step, and as I stepped down on it with my right foot this stone slipped and slid from under my foot, and that caused me to pitch forward and fall toward the right-hand side of the hill." No one, called as a witness, saw the fall. Whatever occurred there, occurred after most of the boys had already reached the foot of the trail, and after some had already descended the stairway leading into Rex Avenue. The evidence of Ford, who was walking beside the teacher, adds nothing of value; he said he did not recall seeing the plaintiff run; "after I saw him on the step where the stone came out I didn't see him again until he was down by the cliff there." We do not know what he meant by "where the stone came out"; he did not see the plaintiff who was behind him when the trouble began.

The minor plaintiff's evidence is the only description of the accident on the trail. If, as he said, the stone on which he stepped "moved and slid" the question becomes: What caused it to move or slide? The burden of proving that the cause was one for which defendant was legally liable was on the plaintiffs. There was evidence that it rained the night before. The argument now made on their behalf is that the rain must have washed away supporting earth, the removal of which loosened the stone; that defendant was liable for defective construction, in constructing and maintaining a trail liable to deterioration by rain washing away or softening the earth. One of the boys, Schonmaker, testified "Q. As you came down the stairway that day what can you tell us as to its condition? A. Well, it had been raining the night before, and I believe the ground was very soft from the weather, and the rocks were a little wet, I believe, and it was unregular, you had to take your time to go down. If you proceeded like with regular steps, I believe he would have fell anyhow." Another, Archibald, testified: "Q. Will you tell us what you can of the condition of the stairs as you came down them? A. Well, I think it was raining the day before we came, and the steps had moss on them and they were pretty slippery then, and when we were coming down the steps we had to hold on along the bank. There was like a bank along the left-hand side of the stairway, and we had to hold on to that, maybe, in different places." John Hooven said: "The steps were irregular and they were slippery, and it rained on Friday and the dirt was wet, and some of the stones were wet, and there was like a greenish moss on some of the steps." Warren McDowell's evidence is to the same effect. Robert Farrell said: "They had green moss on them and they were wet like." James E. Scully testified: "Q. Do you remember that it had rained the night before? A. Yes. Q. Everything out there, generally, was wet, was it...