Peair v. Home Ass'n of Enola Legion No. 751

• Citation: 430 A.2d 665,287 Pa.Super. 400
• Parties: Dolores E. PEAIR and Wallace L. Peair v. HOME ASSOCIATION OF ENOLA LEGION NO. 751, Appellant.
• Decision Date: 22 May 1981
• Court: Superior Court of Pennsylvania

Page 665

430 A.2d 665 287 Pa.Super. 400 Dolores E. PEAIR and Wallace L. Peair
v.
HOME ASSOCIATION OF ENOLA LEGION NO. 751, Appellant. Superior Court of Pennsylvania. Argued Sept. 8, 1980.
Filed May 22, 1981.

[287 Pa.Super. 402]

Page 666

F. Lee Shipman, Harrisburg, for appellant.

[287 Pa.Super. 403] Kent H. Patterson, Harrisburg, for appellees.

Before SPAETH, HESTER and CAVANAUGH, JJ.

SPAETH, Judge:

This is an appeal from a judgment entered on a verdict in a negligence case. The verdict was in favor of appellees, who were plaintiffs below, in the amount of $25,000. The case was tried under the Comparative Negligence Act. ¹ In response to special interrogatories, the jury found appellant to have been 85 per cent negligent and appellees 15 per cent. The trial judge accordingly molded the verdict to $21,250. Appellant argues that the lower court erred in refusing to grant either its motion for judgment n. o. v. or its motion for new trial. Among the issues presented are issues of first impression under the Comparative Negligence Act. We agree with the lower court's resolution of these issues, and finding no error, shall affirm.

The Motion for Judgment N.O.V.

Appellant first argues that the lower court should have granted its motion for compulsory nonsuit and therefore its motion for judgment n. o. v. because, it says, the evidence was insufficient to permit the jury to find that it had been negligent.

A nonsuit should be entered only in a clear case. McMillan v. Mountain Laurel Racing Inc., 240 Pa.Super. 248, 367 A.2d 1106 (1976); DiGiannantonio v. Pittsburgh

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R. Co., 402 Pa. 27, 166 A.2d 28 (1960); Dunmore v. McMillan, 396 Pa. 472, 152 A.2d 708 (1959). In describing how clear the case must be, it has been said that a nonsuit can be entered

only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved.

[287 Pa.Super. 404] Borisoff v. Penn Fruit Company, Inc., 165 Pa.Super. 572, 574, 69 A.2d 167 (1949).

Also, it has been said that a nonsuit should be entered only where the facts and circumstances lead unerringly to the conclusion that the plaintiff has failed to prove his case. Korpa v. Stuyvestant Life Ins. Co., 236 Pa.Super. 581, 351 A.2d 682 (1975). When these principles are applied here the evidence produced by appellees may be summarized as follows:

The claim is for damages arising from injuries suffered by appellee Dolores E. Peair when she fell twice the first time on September 9, the second on September 14, 1976 on the sidewalk in front of appellant's building on Shady Lane in Enola.

The first fall occurred when Mrs. Peair was on her way home from a bus stop. It was a clear dry day. As Mrs. Peair walked on the sidewalk in front of appellant's building, she looked down and saw "what appeared to be solid concrete and then solid stone, smooth stone," and "gravel in certain parts by the cracks, the grooves in between the blocks." (N.T. 12-13) This condition extended the length of appellant's building, except for a space of about two blocks. Mrs. Peair walked on what she thought was a solid part of the sidewalk. As she passed a hedge growing out over the sidewalk, and put her weight on her left foot, she fell, grabbing the hedge to break her fall. The concrete, which had appeared solid, had crumbled beneath her left foot. Although she had seen ruts in the concrete, there did not seem to be any where she had placed her left foot.

The second fall also occurred when Mrs. Peair was on her way home, from the same bus stop. Again, it was a clear, dry day. Remembering her earlier fall, Mrs. Peair was careful to look down at the sidewalk, and to walk to the left of where she had fallen before. Again, however, when she put her left foot down on concrete she believed solid, it crumbled and she fell.

Mrs. Peair had lived on Shady Lane for nine years, and during the year before she fell she had walked on the [287 Pa.Super. 405] sidewalk in front of appellant's building at least three or four times. She explained that she had not walked on the opposite side of Shady Lane because on that side, at least at the corner, there were weeds and other vegetation growing out over the sidewalk, and beer bottles and cans strewn about. This description was documented by photographs. Also, two neighbors testified that the sidewalk in front of appellant's building was broken and uneven, and had been in a deteriorating condition for at least two years before Mrs. Peair fell.

As a property owner, appellant had the duty to keep its sidewalk in a safe condition for travel by the public.

Sidewalks must be maintained that they will not present an unreasonable risk of harm to pedestrians. What constitutes such a condition depends upon all of the circumstances. It may generally be defined as one attended with an unreasonable risk of harm, one that is hazardous or unsafe, or one that constitutes a danger to persons traveling thereon.

Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176 (1963).

See also Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623 (1962); Davis v. Shenandoah Borough, 273 Pa. 501, 117 A. 207 (1922). It was appellees' burden to prove that appellant had failed to keep its sidewalk in a reasonable state of repair. What constitutes a reasonable state of repair is a question for the jury. See Kuntz v. Pittsburgh, 123 Pa.Super. 394, 187 A. 287 (1936). Here, Mrs. Peair's description of the sidewalk, corroborated by the photographs and the

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descriptions of the neighbors, was sufficient to go to the jury on the issue of whether the sidewalk was in a reasonable state of repair.

It was appellees' burden also to prove that appellant had actual or constructive notice of the state of repair of its sidewalk. Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963). Constructive notice may be proved by evidence of condition itself if that condition is shown to have been evident and in existence for a substantial period of time. Nash v. Atlantic White Tower System, Inc., 404 Pa. 83, 170 A.2d 341 (1961); Davis v. Shenandoah, supra. Here, the [287 Pa.Super. 406] testimony, especially of the neighbors, was sufficient evidence to go to the jury on the issue of notice as well.

Section 342 of the Restatement (Second) of Torts (1965) states:

A possessor of land is...