157 A. 486 | Pa. | 1931
On the evening of January 30, 1929, as the plaintiff, Catherine Bailey, was walking on the sidewalk of Spruce Street, in front of the property of the Borland Lumber Company, in Oil City, she was hurt by falling upon the ice-covered walk, on account of which she brought this suit against the city and property owner. The lower court entered a compulsory nonsuit and the refusal to take it off forms the basis of this appeal by plaintiff.
The action of the court was right. The sole negligence complained of in plaintiff's statement is that the defendants "then and there neglected to clean the sidewalk and keep the same clear of ice and snow, and negligently permitted snow and ice to accumulate on the *327
sidewalk in front of the Borland Lumber Company's premises and thereby render the sidewalk slippery and dangerous as a public thoroughfare." Manifestly this did not state a good cause of action. A municipality is, in general, not liable for accidents resulting from the icy condition of its streets and walks. In Boro. of Mauch Chunk v. Kline,
It is, however, a city's duty to cause the removal from the walks of such substantial ridges or hills of ice or snow as constitute an obstruction to travel. See Llewellyn v. Wilkes-Barre,
Waiving the defect in the statement of claim, the proof totally failed to show any material ridge of ice. Under the most favorable construction it merely was to the effect that there had been snow and ice on the walk for some time which had been so softened during the day of the accident as to make footprints therein, which as the ice hardened in the evening gave the walk an uneven surface. Possibly this would increase the danger of walking thereon, but the surface would not be such ridges of ice as the law condemns. A ridge is an elevation, not a mere uneven surface caused by foot prints. No case was called to our attention and we know of none where a municipality has been held liable merely because of such uneven surface. It would be as impossible for a city to keep its walks smooth in such weather as to keep them free from ice. In other words, the mere uneven surface, caused by walking upon ice as it freezes, does not constitute such an obstruction as the law condemns. It is incident to the existence of ice upon the walks. Furthermore, it must appear either that the city had actual notice of the obstruction or that it had existed so long as to amount to constructive notice. See Green v. Hollidaysburg,
Where the existence of ice upon the walk results from the city's negligence, as in case of suffering water to flow upon the walk from a broken hydrant (Decker v. Scranton City,
During the presentation of plaintiff's evidence, the defendants asked permission to take the testimony of Dr. Dickey, who was called away. Defendant's counsel stated that it was, "With the right to offer such testimony if it becomes necessary in the trial of this case. We are just asking to take the testimony now." The request was granted with the consent of plaintiff's counsel. The testimony so taken was in the nature of a deposition and, as it was not offered in evidence, did not prevent the court from granting the defendant's motion for a compulsory nonsuit. Of course, the doctor's testimony could have been taken out of court on a short rule and that it was taken in court did not change the result, especially as plaintiff's counsel consented thereto.
The judgment is affirmed. *330