Toglatti v. Carrick Borough

• Decision Date: 21 July 1915
• Docket Number: 53-1915
• Citation: 61 Pa.Super. 244
• Parties: Toglatti v. Carrick Borough, Appellant
• Court: Pennsylvania Superior Court

61 Pa.Super. 244

Toglatti v. Carrick Borough, Appellant

No. 53-1915

Superior Court of Pennsylvania

July 21, 1915

Argued May 3, 1915 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from order of C.P. Allegheny Co.-1914, No. 367 refusing petition for appeal from County Court in case of Letitia Togliatti v. Carrick Borough.

Petition to appeal from the county court.

From the records it appeared in the county court the plaintiff recovered a verdict of $ 835. On motion for a new trial in that court, Way, P. J., filed the following opinion:

This is a motion for a new trial. There are numerous reasons assigned in support thereof, most of which can be disposed of with brief comment.

1. It is contended that the verdict is excessive. Inasmuch as the plaintiff is a dressmaker by trade and suffered a fracture of the left wrist, which, under the testimony, will probably forever prevent her from following her occupation, it seems that the amount of the verdict, $ 835.00, is by no means excessive compensation for the expense she was put to, the suffering she endured and the probable loss of future earning capacity entailed. We see no reason to interfere with the finding of the jury in this particular.

2. It is contended that the verdict is against the weight of the evidence. The testimony of the plaintiff's witnesses tended to show that the plaintiff was walking on a boardwalk maintained by the Borough of Carrick, and that the end of a loose board dropped under her weight, causing her to trip against the projecting end of the next board, whereupon she fell and sustained a fracture of the wrist.

There is no possible doubt that the plaintiff fell on the boardwalk and there was amply sufficient evidence tending to prove that there were loose boards in places on this walk, and particularly one which might have been located at the very point where plaintiff says she fell.

There was some difficulty in fixing the exact location of the accident; plaintiff's witnesses fixed it as being nearly opposite a pool room which was situate across the street and at or near a telegraph pole. There was positive testimony at the trial of a board being found depressed on the very day of trial about opposite the pool room in question, though some twenty feet from the pole.

The really controverted part of the case was as to whether the borough had either direct notice of the condition of the walk or whether the condition complained of had existed so long as to put the borough on implied notice of it. On this point plaintiff had three witnesses, one of whom testified that some time previously he had notified the chief of police of the borough as to the dangerous condition of the whole walk. This was admitted by the chief of police, who, however, insisted that the notice referred to a condition of the walk at a point a considerable distance from the scene of the accident. Plaintiff's other witnesses testified that the boards of the walk were loose in a number of places at or near the point of the accident, and had been so for a long period of time, possibly three years. A number of witnesses on behalf of the borough testified that they knew of no such defect. The question was for the jury, to whom the matter was submitted, with proper instructions, and they found for the plaintiff. We see no reason to disturb their finding.

3. Complaint is made that the plaintiff's counsel made some improper remarks to the jury as to the officers of the borough. No attempt was made to place these remarks on the record, and it is not the recollection of the trial judge that such remarks went beyond the usual latitude of counsel in commenting upon testimony in a case of this kind.

4. It is alleged that Hofman, one of plaintiff's witnesses declared after the trial that he and another witness had each received $ 20.00 for testifying. Depositions were taken in support of this allegation, which tend to show that Hofman did say something of this sort after the trial, but that as a matter of fact neither he nor the other witness had received $ 20.00 or any other sum. When Hofman made the statement he was under the influence of liquor and was engaged in crowing over one of the witnesses of the unsuccessful party. We do not think that this episode, if it could be used by the defendant on a second trial, would result in a different verdict. The verdict in our opinion was based on the facts that plaintiff undoubtedly tripped and fell on this boardwalk; that she tripped because the surface of the walk was in a treacherous condition and that this was an old walk inherited by the borough from the street railways company, and upon which no work had been done for a long time, and that the treacherous condition of the walk could easily have been ascertained by the borough...