Shallcross v. City of Philadelphia

• Decision Date: 21 July 1898
• Docket Number: 76
• Citation: 187 Pa. 143,40 A. 818
• Parties: Thirza W. Shallcross, Appellant, v. The City of Philadelphia
• Court: Pennsylvania Supreme Court

40 A. 818

187 Pa. 143

Thirza W. Shallcross, Appellant, v. The City of Philadelphia

No. 76

Supreme Court of Pennsylvania

July 21, 1898

Argued April 7, 1898

Appeal, No. 76, Jan. T., 1898, by plaintiff, from order of C.P. No. 3, Phila. Co., March T., 1897, No. 221, refusing to take off nonsuit. Affirmed.

Trespass for personal injuries.

The facts appear by the opinion of the Supreme Court.

The trial court entered a compulsory nonsuit and refused to take it off.

Error assigned was refusal to take off nonsuit.

The judgment is affirmed.

John M Vanderslice, with him Chas. L. Smyth and Christopher H Murray, for appellant. -- The case was for the jury: Glase v. City, 169 Pa. 488; Bruch v. City, 181 Pa. 588.

Leonard Finletter, assistant city solicitor, with him Chester N. Farr, Jr., assistant city solicitor, and John L. Kinsey, city solicitor, for appellee, cited Buzby v. Traction Co., 126 Pa. 561; Robb v. Connellsville, 137 Pa. 42; Barnes v. Sowden, 119 Pa. 53; Ding v. Thompson, 87 Pa. 365; Dehnhardt v. City, 15 W.N.C. 214; City of Philadelphia v. Smith, 23 W.N.C. 242; Dickson v. Hollister, 123 Pa. 421; Hentz v. Somerset Borough, 2 Pa. Superior Ct. 227; Lumis v. Traction Co., 181 Pa. 269.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and FELL, JJ.

OPINION

MR. JUSTICE FELL:

The plaintiff claimed to have been injured by falling upon the pavement at the corner of Franklin and Buttonwood streets. Her testimony and that of her witnesses showed that a slight cave-in had occurred in the surface of the foot-pavement at the side of a sewer inlet. At the outer edge of the pavement, close to the iron cover of the inlet, and near the crossing, was a hole into which some one had wedged a stone block which projected between four and six inches above the pavement. A number of bricks had been displaced and were lying loose on the surface around the stone. When about to step from the pavement to the crossing the plaintiff struck her foot against the projecting stone and fell. This occurred in the daytime. The stone was plainly visible, as was also the condition of the pavement around it, and the plaintiff admitted on cross-examination that she could have seen it if she had looked. This statement of facts gives to the whole testimony produced by the plaintiff the fullest effect favorable to her which can possibly be claimed for it, and it is upon it that the judgment of nonsuit must be considered as based.

In Robb v. Connellsville Borough, 137 Pa. 42, it was said by our Brother MITCHELL: "That the reasonable care which the law exacts of all persons in whatever they do involving the risk of injury requires travelers, even on the foot-ways of public streets, to look where they are going, is a proposition so plain that it is not often called for adjudication. But it...