Smith v. Sneller

• Decision Date: 25 May 1942
• Docket Number: 271
• Citation: 345 Pa. 68,26 A.2d 452
• Parties: Smith, Appellant, v. Sneller et al
• Court: Pennsylvania Supreme Court

26 A.2d 452

345 Pa. 68

Smith, Appellant, v. Sneller et al

No. 271

Supreme Court of Pennsylvania

May 25, 1942

May 12 1942, Argued

Appeal, No. 271, Jan. T., 1942, from judgment of the Superior Court, Oct. T., 1941, No. 226, reversing judgment of C.P. No 5, Phila. Co., Sept. T., 1940, No. 193, in case of Joseph M Smith v. Peter Sneller et al. Judgment affirmed.

Trespass for personal injuries. Before MILNER, J.

Verdict and judgment for plaintiff and against defendants in sum of $500. Defendant appealed to the Superior Court which reversed the judgment of the court below. Appeal by plaintiff to Supreme Court allowed.

Judgment affirmed.

Frank J. Eustace, Jr., with him Francis M. McAdams, of McAdams, Eustace & McAdams, and Raymond A. Speiser, for appellant.

Richard A. Smith, Louis Wagner and Thomas J. Clary, for appellee, were not heard.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. JUSTICE DREW:

This is an action in trespass in which plaintiff recovered a verdict and judgment. On appeal, the Superior Court reversed the judgment on the ground that plaintiff was guilty of contributory negligence, and entered judgment n.o.v. for defendant Sneller, he alone having appealed. This appeal was then specially allowed.

The opinion of the learned Superior Court, written by Judge HIRT, reported at 147 Pa.Super. 231, accurately states the facts as follows: "Plaintiff, while engaged in a house to house canvass as a salesman of small articles, was injured in falling into an open trench in the west sidewalk of North Fifth Street in the City of Philadelphia. Defendant Sneller, a plumber, under contract to make a sewer connection with one of the houses on the street, had entered into an agreement with defendant Lomastro under which the latter did the necessary digging. A section of the concrete sidewalk had been removed and Lomastro's men were in the trench at the time of plaintiff's injury. The trench then extended from the curb across the sidewalk, three or four feet wide, and had been dug to a depth of seven or eight feet. The earth from the excavation had been thrown upon the sidewalk along both sides of the trench. Plaintiff was walking northwardly on the sidewalk. On the far side of the trench as he approached it, there was a barricade but along the side nearest him there was only the pile of excavated material between him and the trench, about two feet high according to the only testimony on the subject. Plaintiff, because of defective eyesight, did not see the pile of earth and had no notice that it was there until he felt it under his feet as he walked upon it. The loose material slipped from under him causing him to lose his footing and he fell into the trench."

The opinion of the Superior Court continues: "Sympathetic as we are to the plaintiff in his effort to make a living in spite of his physical handicap, we think it clear that he did not present a case free from contributory negligence . . . There is no doubt as to the degree of impairment of plaintiff's vision. He could perceive light and, under favorable conditions, objects, but could not distinguish them. His sight was so impaired that his reference to himself in his statement of claim as a 'blind person' is an accurate appraisal, for all practical purposes, of his ability to see. He was somewhat familiar with the neighborhood and he managed to go about without an attendant, guided by the sky line of the buildings and was able to keep on the sidewalk by means of the poles and trees along the curb or hedges marking the property lines. These, under favorable light conditions, he was able to see dimly. When on the witness stand on the trial of this case, however, he could not see the trial judge nor an examiner who was within five feet of him nor the foreman of the jury six feet away.

"Describing what occurred just before his injury, plaintiff said: 'I was walking along very carefully there; there was a hedge and of course some trees that I use as markers and I felt a break in the paving, and felt some dirt, and my foot started to go down a little bit and then gave way and I could not hold my balance and fell in there. I didn't get...