Mintzer v. Greenough

• Decision Date: 31 May 1899
• Docket Number: 416
• Citation: 192 Pa. 137,43 A. 465
• Parties: Laura V. Mintzer v. William Greenough and Catherine L. Hogg, trustees of William Hogg, Jr., Appellants
• Court: Pennsylvania Supreme Court

43 A. 465

192 Pa. 137

Laura V. Mintzer v. William Greenough and Catherine L. Hogg, trustees of William Hogg, Jr., Appellants

No. 416

Supreme Court of Pennsylvania

May 31, 1899

Argued March 23, 1899

Appeal, No. 416, Jan. T., 1898, by defendants, from judgment of C.P. No. 3, Phila. Co., Dec. T., 1897, No. 1004, on verdict for plaintiff. Affirmed.

Trespass for personal injuries. Before FINLETTER, P.J.

This action was brought by Laura V. Mintzer against the trustees under the will of William Hogg, Jr., for personal injuries received by stepping into a hole in the sidewalk on the southern side of East York street near Jaspar street. Five trustees are appointed by the will, and are named in the summons; one of them is dead and two are nonresidents. The summons was served on only two of the trustees.

The plaintiff's evidence tended to show that on the evening of October 3, 1896, she came from a point beyond Jaspar street, which she crossed, and stepped into a hole in front of No. 1904, which was more than two feet long by more than a foot and a half wide and nearly a foot deep. She excused her failure to see the hole by the statement that the electric light was very poor. The house had been rented to a Mrs Kress, about the previous Easter, and it was alleged by plaintiff that there were at the time some loose bricks in the pavement, and sweeping and cleaning by the tenants had enlarged the hole. It was repaired immediately after the accident, and it was alleged that the new bricks used in the repair still showed.

[The court was asked to allow the jury to view the place that they might see for themselves where the patching had been done but the request was refused, and defendants excepted to the refusal.]

It was admitted that testator had died seized of the property and that defendants, who were before the court, together with William and James Hogg, residents of Worcester, Mass., were trustees under his will, and as such have a legal title to the property. It was not shown that any of the defendants or any of their agents or subagents knew or had notice of the defect.

The court charged in part as follows:

This action is brought to recover damages arising from an injury which plaintiff suffered in consequence of the negligence of the defendants. There are two questions to be determined by the jury. First, were the defendants negligent; and secondly, was the plaintiff negligent in such a way as contributed to the injury? No matter how negligent the defendants may have been, if the plaintiff in any degree contributed to the accident she cannot recover.

[It was the duty of the defendants to keep their pavement in reasonably good repair.] It was the duty of the plaintiff to exercise reasonable watchfulness under all the circumstances of the case. The questions which the jury are to consider are, first of all, was the brick pavement out of repair; that is to say, were the bricks removed and was there a hole created by the removal of the bricks, or any other matter, touching the want of repair. You will understand that property owners are not responsible for the ordinary unevenness of a brick pavement, but only when the pavement itself is out of repair, or, in other words, when portions of a brick pavement are removed, or when there exists such a condition as is complained of here.

Again, if you find that the brick pavement was out of repair, you will determine from the evidence whether it was dangerous or not. You will also determine from the evidence whether the want of repair in the pavement caused the injury complained of by the plaintiff. In this connection it is important for you to consider what knowledge the plaintiff had of the pavement itself -- its condition, and its surroundings, and the general locality or neighborhood.

If you are satisfied from all the evidence in this case -- and I mean the evidence of the defendants as well as for the plaintiff -- that the defendants were negligent, then the question arises, was the plaintiff herself negligent? In considering this question the jury will consider, first, her knowledge of the locality, of the pavement itself, and of the hole, and its want of repair. Again, the jury are to take into consideration a very important thing, and that is the time -- whether it was daylight or night, or whether there was sufficient light, or what quantity of light was thrown upon the hole itself by the reflection of light in and about the place. Again, the jury will take into consideration all the difficulties and circumstances which might have entered into a consideration of the safety or danger of crossing that pavement, in the plaintiff's mind, such as the darkness of the night, and the obscurity of the light, and all the attendant circumstances. In this connection I have also to say that the greater the difficulty of seeing clearly, renders the greater care on her part. The wayfarer is bound to consider the difficulties of seeing clearly, as he passes along, just as in ordinary circumstances he will consider any question which involves his safety. In this connection it is my duty to say to you that the plaintiff was not bound to exercise extraordinary care. She had a right to assume that the pavement was reasonably safe, and that by the ordinary use of her eyes she could safely walk upon it. Care, under all the circumstances, is all that the law enjoined upon her to exercise.

Defendants' points and the answers thereto were as follows:

1. If the accident for which this suit is brought occurred by reason of the defect (described in the evidence) in the sidewalk of the public highway in front of a house occupied by a tenant, the landlords of the house are not liable therefor to the plaintiff. Answer: Refused. [3]

2. An owner out of possession, whose house is in the actual occupation of a tenant, is not required to keep a constant supervision of such house and of the highway in front of it; and if a defect occurs in the sidewalk during such occupation by a tenant, by reason of which a person walking on the street is injured, the landlord is not liable to the person injured, unless knowledge or notice of such defect is traced to him. Answer: Refused. [4]

3. An owner out of possession, whose house is in the actual occupation of a tenant, is not liable for an accident from a defect in the sidewalk arising during the occupation by the tenant unless he have formal notice from the city to repair the defect. Answer: Refused. [5]

5. If the jury believe that the hole in which the plaintiff claims to have fallen was in front of property 1902 York street, under the pleadings and evidence the plaintiff cannot recover. Answer: Refused. [6]

6. The defendants, being merely trustees of a legal title, are not responsible in the first instance to plaintiff for her injury from an accident occurring by reason of a defect in the public highway unconnected with the building, no notice having been given them to repair. The responsibility in the first instance is on the city of Philadelphia. Answer: Refused. [7]

7. The evidence on behalf of plaintiff showing that at the time 1904 was leased to the tenant in possession at the time of the accident, the defect in the highway was a very minor one, and the hole having been rendered dangerous by sweeping dirt out of it, making it deeper and loosening the bricks, the responsibility is upon the tenant and not upon the trustees defendant. Answer: Refused. [8]

8. It appearing in plaintiff's evidence, if believed, that the defect was an obvious one; that it was near an electric light, and that the sidewalk was not obstructed, she is guilty of contributory negligence, and the verdict should be for the defendants. Answer: Refused. [9]

9. Under all the evidence the verdict should be for the defendants. Answer: Refused. [10]

Verdict for plaintiff for $7,500 upon which judgment was entered for $4,000, a remittitur having been filed for $3,500.

Errors assigned were (1, 3-10) above instructions, quoting them; (2) refusal of the trial court to permit the jury to view the premises.

The appellee moved to quash the appeal filing the following reasons:

1. The record shows that no bill of exceptions was ever signed, sealed, presented to, or allowed by any of the judges of the court below.

2. The record shows that the stenographer's notes of the testimony, charge, and answers to points filed by appellants have not been settled or approved, either by agreement of counsel or by the trial judge.

3. The stenographer's notes of trial fail to disclose any request made by appellants to the trial judge to reduce to writing and file of record his charge, or his answers to points, or that any exceptions to said charge and answers to points were allowed by the trial judge, nor is there any certification of the trial judge that such request was made.

4. The affidavit by appellants' counsel and certification by a judge who did not try the case as to the correctness of the notes of trial, and as to alleged requests to the trial judge not appearing of record, both made without notice to appellee's counsel, and both made and attached after the record had been filed in this court, are irregular and unauthorized methods of perfecting appeals.

It was stated in appellants' paper-book that a request had been made to the trial judge to allow the bill of exceptions, but that owing to his illness no certificate could be procured. Under the circumstances Judge McCARTHY, another member of the court, signed the certificate.

We find nothing in any of the assignments of error that require further notice. They are all overruled and the judgment is affirmed.

J Howard Gendell, for appellants. -- An abutting owner is not liable to one injured on a sidewalk from failure to...