Spencer v. City of Philadelphia

• Decision Date: 29 January 1923
• Citation: Spencer v. City of Philadelphia, 120 A. 131, 276 Pa. 310 (Pa. 1923)
• Docket Number: 32,33
• Court: Pennsylvania Supreme Court
• Parties: Spencer et ux. v. Philadelphia, Appellant

Page 310

276 Pa. 310

Spencer et ux.

v. Philadelphia, Appellant.

Supreme Court of Pennsylvania.

January 8, 1923.

January 29, 1923.

Argued January 8, 1923.

Appeals, Nos. 32 and 33, Jan. T., 1923, by defendant, from judgments of C. P. No. 2, Phila. Co., March T., 1918, No. 964, on verdict for plaintiffs, in case of William Spencer and Meta Spencer, his wife, v. Philadelphia.

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

Wm. M. Stewart, Jr., Assistant City Solicitor, with him David J. Smyth, City Solicitor, for appellant.— Plaintiffs did not show any legal excuse for filing to see an obvious obstruction on the sidewalk.

There was a complete failure to prove notice of the alleged obstruction either actual or constructive: Beck v. Cricket Club, 228 Pa. 173; Wagner v. Traction Co., 212 Pa. 132; Phila. City Pass. Ry. v. Henrice, 92 Pa. 431.

Plaintiff failed to adopt the safer way to pass this pavement which she saw was covered with slush: Ingram v. Phila., 35 Pa. Superior Ct. 305; Rothacker v. Phila., 42 Pa. Superior Ct. 408; Evans v. Phila., 205 Pa. 193; Nolan v. Pittsburgh, 272 Pa. 217.

Michael D. Hayes, with him Francis M. McAdams and William H. Wilson, for appellee, cited: Holbert v. Phila., 221 Pa. 266; Hibberd v. Phila., 245 Pa. 265; Llewellyn v. Wilkes-Barre, 254 Pa. 196; Slife v. Dorranceton, 262 Pa. 182.

OPINION BY MR. JUSTICE FRAZER, January 29, 1923:

Plaintiff was injured by falling on an icy pavement in the City of Philadelphia. The case was submitted to the jury and, from a judgment on a verdict rendered in her favor, defendant appealed, contending she was negligent in failing to see the danger, or in attempting to pass over that portion of the sidewalk with knowledge of its condition, there being a safer way around, also that the evidence was insufficient to show either actual or constructive notice to the city.

On January 31, 1918, about 3:30 p. m., plaintiff was walking along Chestnut Street, one of the main shopping streets of the city, accompanied by a friend. The sidewalk was crowded and while endeavoring to avoid persons "rushing" or "pushing through the crowd" in the opposite direction, she stepped to one side and slipped and fell on an accumulation of ice estimated to be from two inches in height at the edge to four inches in the center and two feet square, in form "like a dish pan turned upside down." The sidewalk of the street had been cleared of snow and ice except in front of the vacant premises where plaintiff fell. At this place the pavement was covered with slush, preventing her from observing the mound of ice which caused her fall; there is also evidence that the slushy condition had continued for some time and that the snow and ice accumulated from various storms had been allowed to remain for at least a month, or perhaps the greater part of the winter.

Under the foregoing state of facts we cannot hold plaintiff negligent, as a matter of law, either on the ground that she failed to see the ice which caused her to fall, or because she voluntarily undertook to pass over a dangerous place when she might have passed on the opposite side of the street. According to her testimony, she was proceeding carefully and noticed the pavement had a "general slushy appearance." This, together with the crowded condition...