Shaw v. City of McKeesport

• Decision Date: 25 November 1929
• Docket Number: 135
• Citation: Shaw v. City of McKeesport, 148 A. 44, 298 Pa. 119 (Pa. 1929)
• Parties: Shaw v. McKeesport, Appellant
• Court: Pennsylvania Supreme Court

148 A. 44

298 Pa. 119

Shaw v. McKeesport, Appellant

No. 135

Supreme Court of Pennsylvania

November 25, 1929

Argued October 3, 1929

Appeal, No. 135, March T., 1929, by defendant, from judgment of C.P. Allegheny Co., July T., 1927, No. 1433, on verdict for plaintiff, in case of Blanche Shaw v. McKeesport City. Affirmed.

Trespass for personal injuries. Before MARTIN, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $500. Defendant appealed.

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

The judgment is affirmed.

A. M Simon, with him Harry M. Jones, for appellant. -- Plaintiff's own testimony shows that it was a physical impossibility for the sidewalk at the corner of Huey Street and Shaw Avenue, where she claimed to have fallen, to have been covered with snow and ice as she and her witnesses testified; Maue v. Rys., 284 Pa. 599.

Plaintiff's own testimony shows she was guilty of contributory negligence, assuming for the purpose of argument that there was snow and ice on the sidewalk: Gryning v. Phila., 269 Pa. 277; Kleckner v. R.R., 258 Pa. 461; Steck v. Allegheny, 213 Pa. 573; Watts v Boro., 255 Pa. 185; Purcell v. Riebe, 227 Pa. 503; Haven v. Bridge Co., 151 Pa. 620; Erie v. Magill, 101 Pa. 616; Robb v. Boro., 137 Pa. 42; Stevenson v. Ry., 219 Pa. 626; Levitt v. Sandwich Shops, 294 Pa. 291; Jones v. Gas & Elec. Co., 289 Pa. 128.

R. A. Hitchens, for appellee. -- In support of the contention that defendant was guilty of negligence and plaintiff was not guilty of contributory negligence, we cite the following cases: Gross v. Pittsburgh, 243 Pa. 525; Moore v. Phila., 33 Pa.Super. 194; Marshall v. Levy, 64 Pa.Super. 90; Fleming v. Phila., 85 Pa.Super. 172; Slife v. Boro., 262 Pa. 182; Devlin v. Twp., 260 Pa. 179; Green v. Hollidays, 236 Pa. 430; Bruch v. Phila., 181 Pa. 588; Spencer v. Phila., 276 Pa. 310; Llewellyn v. Wilkes-Barre, 254 Pa. 196; New v. Phila., 287 Pa. 588; Nudd v. Boro., 190 Pa. 89; Mellor v. Bridgeport, 191 Pa. 562.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Plaintiff brought suit against the City of McKeesport to obtain damages for personal injuries which she sustained as a result of a fall on one of the city's streets, caused, so she alleges, by the accumulation of ridges of ice thereon due to water flowing over the pavement from an adjoining property. Recovery was had by plaintiff and the municipality appeals.

A reading of the record leaves no doubt in our minds that surface water had been flowing over the sidewalk, freezing in cold weather, for a considerable period of time. There was evidence to warrant a finding by the jury that the ice was there, formed in ridges three or four inches high, on the night of the accident, January 28, 1927.

Appellant argues two propositions to us: first, that the records of the weather bureau show atmospheric conditions which made it impossible that there could have been snow or ice on the sidewalk at the time of the accident. It is quite true the records of the weather bureau indicate the impossibility at the place where the observations were made, on the top of the Oliver Building in Pittsburgh; this accident, however, occurred in McKeesport, fifteen miles away. We are all aware that conditions may be quite different at this distance, that in places no farther apart than these two, it may be snowing or raining in one and not in the other, that ice may remain much longer in one situation than another, due to surrounding conditions -- shade, the thickness of the ice, and, where water is flowing, to its renewal from day to day -- and to other things. It would not be a sound conclusion that there was no ice or snow at the place of the plaintiff's fall merely from the weather bureau's records in Pittsburgh, where there is the positive testimony of the plaintiff and witnesses called by her that they saw them. Particularly is this so when the weather bureau records disclose that on the two previous days, January 26th and 27th, the thermometer was as low as 9 degrees above zero. We conclude there was sufficient evidence of the ice accumulation, and of its existence for a period long enough to put the city on notice of its presence, and to warrant a finding of negligence on its part. In Gross v. Pittsburgh, 243 Pa. 525, where a recovery for plaintiff was affirmed, it appears, as it does here, that the proximate cause of the injury was the icy unevenness of the pavement and that due to the running of water over it, owing to a broken spout, ice had been accumulating at different times throughout the winter. A case very similar to the one in hand is Green v. Hollidaysburg, 236 Pa. 430, where we affirmed per curiam a finding for plaintiff due to her fall on ridges of ice on a pavement.

The second position taken by the city is that the plaintiff was guilty of contributory negligence, one of the features of which is that she weighed 250 pounds. Appellant's counsel point to no judicial determination and none has come to our attention, in which it has been adjudicated that such alleged excess of female weight is a factor to be considered in determining lack of care in walking on public highways.

At the time of the accident, plaintiff was on her way to the railroad station to take a train. She had the choice of two routes, equally convenient to her, either along Cornell Street or by way of Fairview Avenue to its intersection with Huey Street and along the latter. She had walked on Cornell Street the day of the accident and was more...