Thomas v. City of New Castle

• Decision Date: 02 July 1929
• Docket Number: 78-1929,79-1929
• Citation: Thomas v. City of New Castle, 96 Pa.Super. 251 (Pa. Super. Ct. 1929)
• Parties: Thomas, Appellant, v. City of New Castle
• Court: Pennsylvania Superior Court

96 Pa.Super. 251

Thomas, Appellant, v. City of New Castle

Nos. 78-1929, 79-1929

Superior Court of Pennsylvania

July 2, 1929

Argued April 16, 1929

Appeals by plaintiff from judgment of C. P., Lawrence County-1927, No. 134, in the case of Mary Thomas and Nick Thomas v. City of New Castle.

Trespass to recover damages for personal injuries. Before Chambers, J.

The facts are stated in the opinion of the Superior Court.

Verdicts in favor of Mary Thomas in the sum of $ 500 and in favor of her husband in the sum of $ 700. Subsequently the court entered judgment in favor of the defendant non obstante veredicto. Plaintiffs appealed.

Error assigned, was the granting of defendant's motion for judgment non obstante veredicto.

Clyde Gibson, and with him Orville Brown, for appellants.

Robert White, for appellee.

Before Trexler, Keller, Linn, Gawthrop, Cunningham and Baldrige, JJ.

OPINION

Trexler, J.

The substance of plaintiff's testimony is that on the evening of December 30, 1926, between eight and nine o'clock, she with a granddaughter, aged nine, were walking on the sidewalk of Washington Street in the City of New Castle. There were " lots of people that time of night" and they were " going along with the crowd" and as they came near an intersecting street called Mercer, she slipped on the ice and fell in the middle of the sidewalk and sustained severe injuries.

Her first witness stated that Mrs. Thomas fell on the " ice which covered the sidewalk all over, it was like a sheet of glass, hard, not shiny." He did not know how thick it was.

The next witness testified the pavement was icy. The ice " had lain there a week (later she said several days) and had been tramped in and frozen again. Was quite rough in my estimation. It had thawed several times and frozen again." She could not say whether it was thick or thin. It seemed thick to her because it had " lain so long and been tramped so much." The walks along Washington Street " would melt in the day time and freeze in the evening." There was nothing unusual about the appearance of the ice. The next witness gave about the same story. Could not tell whether the ice was thick or thin. Not many places on the street had been cleared off. " It was rather snowy all over." The man in charge of the local weather bureau testified that on the 28th of December, there was no appreciable snow, the day before there had been 1 3/4 inches, on the 26th, there was rain and snow about 3/4 inch, and on the 25th, one half inch, and on the 24th, one inch.

No negligence on the part of the city is shown in the above testimony. This court held in Ingram v Philadelphia, 35 Pa.Super. 305, that " a municipality is not bound to remove smooth slippery ice from a sidewalk where there are no hills or ridges which amount to an obstruction" and a number of cases are cited in support of this rule. One of them is Mauch Chunk v. Kline, 100 Pa. 119, in which Chief Justice Sharswood delivering the opinion of the court said, quoting from McLaughlin v. City of Corry, 77 Pa. 109, " Slippery walks in the winter are a necessary incident to the climate. No method known to science can fully prevent their existance, nor guard against occasional injuries resulting therefrom." " A municipality cannot prevent the general slipperiness of its streets caused by the snow and ice during the winter, but it can prevent such accumulation thereon in the shape of ridges and hills as to render their passage dangerous." That was a crossing case and the judge charged the jury that there must be an obstacle other than the mere slippery condition and...