Nicholson v. Philadelphia

• Court: Pennsylvania Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Nicholson v. Philadelphia, 194 Pa. 460, 45 A. 375 (Pa. 1900)
• Decision Date: 29 January 1900
• Docket Number: 252
• Parties: Mary Nicholson and Andrew Nicholson v. Philadelphia, Appellant

45 A. 375

194 Pa. 460

Mary Nicholson and Andrew Nicholson v. Philadelphia, Appellant

No. 252

Supreme Court of Pennsylvania

January 29, 1900

Argued January 12, 1900

Appeal, No. 252, Jan. T., 1899, by defendant, from judgment of C.P. No. 3, Phila. Co., Sept. T., 1898, No. 756, on verdict for plaintiff. Affirmed.

Trespass for personal injuries.

At the trial it appeared that Mary Nicholson, on July 27, 1898 between 8 and 9 o'clock in the morning, fell on a defective pavement in front of 744 South Third street in the city of Philadelphia, injuring herself seriously. The condition of the pavement is described in the opinion of the Supreme Court.

The court refused to give binding instructions for the defendant and submitted the case on defendant's negligence and plaintiff's contributory negligence to the jury.

Verdict for plaintiff for $7,500, on which judgment was entered for $6,000, on remittitur filed.

Error assigned among others was (4) in refusing binding instructions for defendant.

Judgment affirmed.

Chester N. Farr, Jr., assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant. -- It is the duty of pedestrians using the sidewalk to look where they are going: Robb v. Connellsville Boro., 137 Pa. 42; Barnes v. Sowden, 119 Pa. 53; Buzby v. Traction Co., 126 Pa. 559; Dickson v. Hollister, 123 Pa. 421; Lumis v. Traction Co., 181 Pa. 268; Shallcross v. Phila., 187 Pa. 143.

J. Burwood Daly, Harry A. Mackey and James Gay Gordon for appellee, were not heard.

Before GREEN, C.J., McCOLLUM, MITCHELL, DEAN, FELL, BROWN and MESTREZAT, JJ.

OPINION

PER CURIAM:

The negligence of the officials of the city whose duty it was to keep the pavement in repair, in not heeding the frequent reports of the police officers as to the condition of the pavement in question, was so manifest that the verdict of the jury was inevitable on that subject. On the question of the plaintiff's contributory negligence the case was for the jury, and it was carefully committed to them by the learned trial judge, and found in favor of the plaintiff.

Upon an examination of the testimony we cannot say that there was error in leaving this question to the jury on the ground that the contributory negligence of the plaintiff was so apparent that the court was bound to treat it as a question of law. The pavement was out of repair, but there was no open hole in it or in the ground underneath the bricks. Nor were the bricks absent; they were loose owing to the crumbling of the mortar which held them together, but they were there, and many of them in place. Some...