Montgomery v. City of Philadelphia

• Decision Date: 18 April 1921
• Docket Number: 402
• Citation: 270 Pa. 346,113 A. 357
• Parties: Montgomery et ux. v. Philadelphia, Appellant
• Court: Pennsylvania Supreme Court

113 A. 357

270 Pa. 346

Montgomery et ux. v. Philadelphia, Appellant

No. 402

Supreme Court of Pennsylvania

April 18, 1921

Argued March 24, 1921

Appeal, No. 402, Jan. T., 1921, by defendant, from judgment of C.P. No. 2, Phila. Co., March T., 1919, No. 1372, on verdict for plaintiff in case of Joseph A. Montgomery et ux v. Philadelphia. Reversed.

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

The opinion of the Supreme Court states the facts.

Verdict and judgment for Elizabeth Montgomery for $3,500 and for Joseph A. Montgomery for $500. Defendant appealed.

Error assigned was, inter alia, refusal of defendant's motion for judgment n.o.v., quoting record.

The judgment of the court below is reversed, and judgment is here entered for the defendant.

Edward A. Kelly, Assistant City Solicitor, and Wm. M. Stewart, Jr. Assistant City Solicitor, with them David J. Smyth, City Solicitor, for appellee. -- Plaintiff was guilty of contributory negligence: Becker v. Phila., 212 Pa. 379; Easton v. Phila., 26 Pa.Super. 517; Lerner v. Phila., 221 Pa. 294; Stern v. Reading, 255 Pa. 97.

Plaintiff, having left the regular foot crossing, assumed the risk of dangers which she might meet in crossing Thirteenth Street: Watts v. Plymouth Boro., 255 Pa. 185.

William H. Wilson, with him Francis M. McAdams, for appellees. -- While street crossings are constructed for the use of foot passengers, if they happen to be obstructed, or to be in such a dangerous condition as to deter an ordinarily prudent person from using them, then one may walk elsewhere: McIlhenny v. Phila., 214 Pa. 44; Watts v. Plymouth Boro., 255 Pa. 185; Anderson v. Wood, 264 Pa. 98.

Care according to the circumstances, is all that is required, and whether such care was exercised under the circumstances is for the jury: See McHugh v. Kerr, 208 Pa. 225; Sprowls v. Morris Twp., 179 Pa. 219; Knepp v. R.R., 262 Pa. 421; Bruch v. Phila., 181 Pa. 588; Wertz v. Williamsport, 67 Pa.Super. 156; Duvall v. New Castle, 74 Pa.Super. 573.

Before FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

This action was brought by the plaintiffs against the City of Philadelphia to recover damages for an injury sustained by the wife. She left her home on a clear afternoon to visit a store located near by on the northeast corner of Porter and Thirteenth streets. When she reached the northwest corner, the crossing was found to be obstructed by a trolley car going west on Porter Street and turning north on 13th, which had stopped upon the curve at the intersection for the purpose of receiving passengers. Instead of awaiting its northward movement on Thirteenth Street, or making use of other crossings at that corner in order to reach her destination, she turned back and attempted to cross the street diagonally to the east side in front of the trolley car. When she had reached the middle of the track, the motorman sounded his gong and started his car. This caused her to become frightened and to jump to the east. In so doing she stepped into a hole in the highway, resulting in a fall and injury. Verdicts were rendered for the plaintiffs and from the judgments entered the present appeal is taken.

The evidence shows the depression in the street was caused by the sinking of the blocks with which it was paved, and sufficiently establishes notice to the city of the condition which existed. If, therefore, the plaintiff was injured as a result of the failure to make proper repairs, a recovery was proper, unless contributory negligence on her part appeared.

A pedestrian may pass over streets at whatever point he elects, and is not limited to the use of established crossings; but, where such have been provided, it becomes his duty to use them, unless there is a good and sufficient reason for following another course. If no such excuse appears, the city is not to be charged with the injury which results from using the main highway: Watts v. Plymouth Boro., 255 Pa. 185; Dillon on Municipal Corporations, section 1699. Where the only conclusion to be drawn from the facts submitted is that the choice of way was carelessly made, and without sufficient reason, it becomes the duty of the court to so declare: Watts v. Plymouth, supra. The testimony of the claimant here shows no justification for failure to cross at the place provided, and, under the authorities, the defendant was entitled to binding instructions.

It is to be noticed further that the depression into which the plaintiff fell was observable to anyone who looked. Those making use of the...