Walton v. Philadelphia

• Decision Date: 01 December 1913
• Docket Number: 70-1913,69-1913
• Citation: 55 Pa.Super. 373
• Parties: Walton v. Philadelphia, Appellant (No. 1)
• Court: Pennsylvania Superior Court

55 Pa.Super. 373

Walton v. Philadelphia, Appellant (No. 1)

Nos. 69-1913, 70-1913

Superior Court of Pennsylvania

December 1, 1913

Argued October 14, 1913

Appeals by defendant, from judgment of C.P. No. 4, Phila. Co.-1911, No. 1,552, on verdict for plaintiffs in case of Jacob Walton and Jacob Walton, Administrator of Emma Walton deceased, v. City of Philadelphia.

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

The circumstances of the accident are stated in the opinion of the Superior Court.

Verdict for each of the plaintiffs for $ 250, upon which judgment was entered.

Error assigned was in refusing binding instructions for defendant.

Affirmed.

Paul Reilly, assistant city solicitor, with him Thomas Boylan and Michael J. Ryan, city solicitor, for appellant, cited Hopkins v. Williamsport, 25 Pa.Super. 498; Runkle v. Pittsburg, 238 Pa. 349; McDonnell v. Orinoka Mills, 241 Pa. 61; Smith v. Lehigh Valley R. R. Co., 21 Pa.C.C. 9; Delaware, Lackawanna & Western R. R. Co. v. Caddow, 120 Pa. 559.

Henry K. Fries, for appellee, cited: Bruch v. Philadelphia, 181 Pa. 588; Iseminger v. York Haven Water & Power Co. 206 Pa. 591; Smith v. Jackson Twp., 26 Pa.Super. 234; Kane v. Philadelphia, 196 Pa. 502; Henry v. Williamsport, 197 Pa. 465; Wall v. Pittsburg, 205 Pa. 48; McLaughlin v. Corry, 77 Pa. 109; Hopkins v. Williamsport, 25 Pa.Super. 498; Oil City & Petroleum Bridge Co. v. Jackson, 114 Pa. 321; Sellers v. Union Traction Co., 21 Pa.Super. 5.

Before Rice, P. J., Henderson, Morrison, Head and Porter, JJ.

OPINION

MORRISON, J.

This action was originally commenced by Jacob Walton and Emma Walton, his wife, for the recovery of damages for an injury alleged to have been sustained by the wife on the evening of March 4, 1911, while she was passing over a pavement in Unity street in the city of Philadelphia. After the suit was brought and before trial Emma Walton died and the record was amended as indicated by the title of the present case.

At the trial it appeared that upon March 4, 1911, at about eight o'clock p. m., Jacob Walton and his wife Emma were walking westward along the sidewalk of Unity street when they saw some persons a short distance away approaching them on the sidewalk. It appears from the evidence that the walk at this point was quite narrow and at the suggestion of the wife, she and her husband stepped from the sidewalk into the cartway, the husband walking about three feet behind her. When she had taken a few steps she fell at a place where a hole or depression was located in the cartway of Unity street, about two feet from the curb between the sidewalk and the cartway. This hole was described by witnesses as six to eight inches deep and two and one-half to three feet in diameter. There was ample testimony that this hole had been there from nine months to a year and this was sufficient to visit the city with constructive notice that the street pavement needed repair at this place.

The statement of the questions involved and the assignments of error only raise two questions and upon these the appellant's learned counsel ask for a reversal of the judgment: 1. That there was no evidence that the fall of Emma Walton had been caused by the alleged defect in the street. 2. That she was guilty of contributory negligence. The learned counsel for appellant presented a point asking for a binding instruction in favor of the defendant. The learned trial judge refused to so charge and the case was submitted to the jury under a charge which was adequate and impartial. The jury returned a verdict in favor of Jacob Walton, in his own right, for $ 250, and in favor of him as administrator of Emma Walton, for a like amount. The appellant moved for judgment non obstante veredicto, which the court refused, and judgments were entered upon the verdicts against the appellant, and the latter appealed to this court.

Upon the first question, as to whether there was sufficient evidence for the jury that Emma Walton was injured by falling on account of the hole in the pavement, we think there was such evidence and that a jury could infer, properly, that she tripped and fell on account of the hole in the pavement. At the trial Jacob Walton testified:"

Q. Did you see what she fell over?

A. Yes.

Q. What was it?

A. A hole.

Q. You took her home?

A. Yes.

Q. Did you go back the next day and examine that hole?

A. Yes, the next morning when I went to the drug store.

Q. Did you measure it?

A. Yes.

Q. Tell us what the measure was?

A. Six inches deep and about three feet in diameter.

Q. How far was it from the curb?

A. About two feet.

Q. And was it in the cartway or on the pavement?

A. On the cartway.

Q. And two feet to the south of the curb?

A. Yes.

Q. What kind of a hole was it?

A. It was a pretty rough hole, it was pretty rough."

There was considerable other evidence in the case tending to show that there was such a hole in the pavement and that Emma Walton fell while passing over the hole.

A careful consideration of the testimony leaves us in no doubt but that it was sufficient to warrant the court in submitting to the jury the question of what caused Mrs. Walton to fall at that place: Bruch v. Phila., 181 Pa. 588; Iseminger v. York Haven Water & Power Co., 206 Pa 591; Smith v. Jackson Twp., 26 Pa.Super. 234; Wall v. Pittsburg, 205 Pa. 48. It has long been settled that a municipal corporation, such as a city, borough, township or county, is liable for damages arising from the neglect of its officers in not...