Tripp v. Borough of Renovo

• Decision Date: 05 March 1921
• Docket Number: 45-1920
• Citation: 75 Pa.Super. 417
• Parties: Tripp, Appellant, v. Borough of Renovo
• Court: Pennsylvania Superior Court

75 Pa.Super. 417

Tripp, Appellant, v. Borough of Renovo

No. 45-1920

Superior Court of Pennsylvania

March 5, 1921

Argued October 25, 1920

Appeal by plaintiff, from judgment of C.P. Clinton County-1918, No 69, in favor of the defendant non obstante veredicto, in the case of Lionel S. Tripp v. Borough of Renovo.

Trespass to recover damages for personal injuries sustained in a fall on an icy street. Before Heck, P. J., 55th Judicial District specially presiding.

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

Judgment for plaintiff for $ 500. Subsequently the court, on motion entered judgment for defendant non obstante veredicto. Plaintiff appealed.

Error assigned was the judgment of the court.

Sidney D. Furst, for appellant. -- The case was for the jury and the learned court erred in entering judgment non obstante veredicto: Wertz v. Williamsport, 67 Pa.Super. 157; Ackley v. Bradford Township, 32 Pa.Super. 487; Cameron v. Citizens Traction Co., 216 Pa. 191; Manross v. Oil City, 178 Pa. 276; Decker v. Scranton City, 151 Pa. 241; Brewer v. Sullivan County, 199 Pa. 594; Marfilues v. Phila. & Reading R. R. Co., 227 Pa. 281; Miller v. Clearfield Borough, 66 Pa.Super. 394.

Henry Hipple, of McCormick & Hipple, and with him H. S. Furst, for appellee, cited: McLaughlin v. City of Corry, 77 Pa. 109; Borough of Mauch Chunk v. Kline, 100 Pa. 119; Garland v. Wilkes-Barre, 212 Pa. 151; Ingram v. Phila., 35 Pa.Super. 305; Camp v. Allegheny County, 263 Pa. 282; Chambers v. Braddock Boro., 34 Pa.Super. 407; Monongahela City v. Fischer, 111 Pa. 9; Baran v. Reading Iron Company, 202 Pa. 274; Matteson v. N.Y. Cent., etc., R. R. Co., 218 Pa. 527.

Before Orlady, P. J., Porter, Henderson, Head, Trexler, Keller and Linn, JJ.

OPINION

HEAD, J.

In this action of trespass the plaintiff sought to recover damages for serious personal injuries occasioned by a fall on a street of the defendant borough, the alleged cause of the fall being an accumulation of ice on the street, which the defendant negligently permitted to remain for a long period of time after notice. The trial resulted in a verdict for the plaintiff, but the court thereafter entered a judgment in favor of the defendant notwithstanding the verdict, and the plaintiff appeals. Our inquiry, therefore, is to ascertain whether or not the court correctly applied the plain legal principles controlling such cases to the evidence offered by the plaintiff, giving to that evidence every reasonable construction favorable to him which his verdict entitled him to have.

The following facts clearly appear and for the purposes of this appeal may be regarded as established: The plaintiff was walking along the street in question, before daylight, on a cold winter morning, following a long period of very severe weather. The street was cut along a hillside. The water main of the defendant borough was buried in the ditch or water table on the upper side of the street. This pipe had been broken a considerable time before the accident, and the borough after notice had failed either to find the exact location of the leak or to repair it, or perhaps both. The plaintiff was walking in the middle of the street. He was moving carefully because he knew there was danger of falling on the ridges and hummocks of ice resulting from the constant freezing of the water coming from the broken main and flowing over the sidewalk on the upper side of the street and the roadway of the street itself. The sharply shod feet of horses had cut and to some extent roughened the ice surface in the middle of the street, and thus in the judgment of the plaintiff, and of pedestrians generally, made that portion of the highway less dangerous than the sidewalk above.

The plaintiff had just passed under an arc light, and consequently was stepping into his own shadow, when he heard a horse and sleigh approaching from behind. He undertook to step aside to permit the vehicle to pass and in doing so, slipped on the ice and was seriously injured by his fall.

Upon this state of facts we think there was warrant for the following assertion in the brief of counsel for appellant, namely, " The jury has found and the court below has refused to disturb the findings (1) that the borough had sufficient notice of the character and quantity of the ice which had accumulated on the roadbed; (2) that in view of the quantity and character of said ice, the borough was negligent in not removing the same or rendering it harmless; (3) that the plaintiff was not guilty of contributory negligence, and (4) that plaintiff was thereby injured."

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