Shepherd v. City of Philadelphia

• Decision Date: 04 February 1924
• Docket Number: 195
• Citation: 123 A. 790,279 Pa. 333
• Parties: Shepherd, Admrx., Appellant, v. Philadelphia
• Court: Pennsylvania Supreme Court

123 A. 790

279 Pa. 333

Shepherd, Admrx., Appellant, v. Philadelphia

No. 195

Supreme Court of Pennsylvania

February 4, 1924

Argued January 15, 1924

Appeal, No. 195, Jan. T., 1924, by plaintiff, from order of C.P. No. 1, Phila. Co., Sept. T., 1920, No. 5164, refusing to take off nonsuit, in case of Zora Olive Shepherd Administratrix of estate of William R. Shepherd, deceased. Affirmed.

Trespass for personal injuries. Before SHOEMAKER, P.J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take off. Plaintiff appealed.

Error assigned was, inter alia, refusal to take off nonsuit, quoting record.

The order appealed from is affirmed.

Frederick H. Spotts, with him Joseph S. Conwell, for appellant.

Harry S. Platowsky, Assistant City Solicitor, with him Bernard J. O'Connell, Assistant City Solicitor, and Joseph P. Gaffney, City Solicitor, for appellee.

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

OPINION

PER CURIAM:

Plaintiff is administratrix of the estate of William R. Shepherd, deceased, who brought this action against the City of Philadelphia for personal injuries sustained by him on October 2, 1920; the court below entered a nonsuit which it refused to remove, and this appeal followed.

On the date before mentioned, at about five o'clock in the afternoon, Shepherd was riding his motorcycle in a southerly direction on Rising Sun Avenue, or Oxford Pike, south of Fox Chase, at a speed of between twelve and fifteen miles an hour. The roadway in question was in the centre of the avenue, with trolley tracks on both sides, the width between the two sets of tracks being twenty-five feet. On reaching a point south of where the Philadelphia & Reading Railway crosses the pike at grade, Shepherd drove his motorcycle into a hole, which was from three to three and one-half feet wide from 20 to 24 inches long, eight to ten inches deep, and had existed near the centre of the road for three months. It was "full daylight" at the time, and there were no obstructions ahead of the cycle rider to prevent him from seeing the hole. Plaintiff produced evidence to show the hole had some "muddy water" in it at the time of the accident, but no witness undertook to say the presence of this water would prevent one using ordinary care from seeing the hole, and one man who was driving on the pike at the time of the accident testified that he himself had seen this defect in the road when twenty...