18 A.2d 99 | Pa. Super. Ct. | 1940
Lead Opinion
Argued May 8, 1940. Near plaintiffs' home, the City of Pittsburgh had maintained a wooden stairway for pedestrians connecting the upper section of Irwin Avenue where the cartway ended at the top of a hill, with a continuation of the street from the lower level at the foot of the slope. The stairway had fallen into decay and during January 1935 was in the course of reconstruction by the city with the aid of Federal labor. The repair or renewal of the upper 2/3 of the stairway had been completed and the lower 45 feet had been removed to make way for the new structure when the appropriation for the project became exhausted and the work stopped. The workmen for their convenience had dug steps into the earth in the surface of the hillside from the lower end of the completed section of the wooden stairway to the foot of the hill. When the work was suspended, the city placed a wooden barricade across the entrance to the stairway at the top, bearing the warning "travel at your own risk." This barrier had been in place undisturbed for a period of about three weeks after the close of the work and until 4:30 of the afternoon of February 7, 1935, when, according to the testimony it *430 was observed to have been removed. At 8:30 the following morning the minor plaintiff, seeing that the barricade was down, used the stairway as a short cut to her school. She had no great difficulty until she left the bottom of the completed structure and reached the earth steps cut into the hillside. These steps were uneven and irregular; they were covered with snow and underneath were "all ridged and rutted with ice." In stepping into a hole in one of them she was thrown forward and was precipitated to the bottom of the hill and was injured. This appeal followed the entry of judgments for the city, notwithstanding verdicts for the plaintiffs. Negligence of the city and contributory negligence of the minor plaintiff are the issues involved.
Since we agree with the lower court that the plaintiffs have not met the burden upon them of proving that the city was negligent, we may pass the question of the contributory negligence of the minor with this comment: The presumption that a child is incapable of negligence grows constantly weaker with increased age and upon approaching age fourteen reaches "that point in the diminishing scale when it was [is] almost a negligible quantity": Gress v. Phila. Reading Ry. Co.,
As to the defendant's negligence: Since the building of this stairway was the city's project and was directly under its supervision and control no notice was necessary to impose the duty upon the city of properly guarding the stairway during the course of construction. Rowland v. Philadelphia,
Since the unauthorized removal of a barrier in itself imposes no liability, if the city is chargeable with negligence in this case, it must be because of its failure to replace the safeguard within a reasonable time after constructive notice of the fact that the barrier had been taken away. The controlling question resolves itself into the inquiry whether the city had constructive notice that the stairway was unguarded. On this question the authorities having to do with rights and liabilities where the dangerous condition is in a highway caused by wear and tear or by alternate thawing and freezing, do not apply; in that class of cases a somewhat longer period of time is required to charge a municipality with notice of the danger. As to a sidewalk in the course of repair, a much shorter period will charge the owner of land and a private contractor with constructive notice of the removal of safeguards during the progress of the work(Beck v. Hood,
We are of the opinion that this is a clear case and that on the undisputed facts the interval was too short *433
to charge the city with constructive notice. True, the barrier was down for 16 hours but of that period between 4:30 P.M. onFebruary 7, 1935 and 8:3O the following morning, the time of theaccident, there was something less than a total of three hours ofdaylight. The law charges a city with notice of a defect only if it has existed a sufficient length of time to be observed by its officers exercising reasonable supervision. McLaughlin v. Kelly,
supra. After placing a safeguard sufficient for the purpose the city's duty was one of inspection, to see that it was in place, but the city was bound to inspect only at reasonably frequent intervals. The city's failure to anticipate that the safeguard might be removed was not negligence in itself, in the absence of circumstances indicating the probability that it would be removed. 62 A.L.R. 504; Doherty v. Inhabitants of Waltham, 4 Gray 596; Canfield v. City of Newport,
The probable danger and the element of risk to a pedestrian involved in descending the hill have some bearing upon the degree of care required of the city and the frequency of inspection required to see to it that the barrier was in place. The hill for the lower 45 feet, into which the earth steps were cut, was only moderately steep; in that distance the perpendicular drop was less than 10 feet. There were thirteen steps with risers of no more than 9 inches. The treads of these improvised steps were at least 3 feet long and were usable by pedestrians without danger of injury except when wet or slippery from an accumulation of ice and snow. The stairway was not attractive to children except as used by the minor plaintiff as a short cut to school. The danger therefore was not immediate as in the case of the failure to safeguard an open ditch in a sidewalk. The case, also, is not comparable in the degree of care required, with one involving a repair of a known dangerous defect in the cartway of a *434 highway open to traffic. Here, the stairway had been closed for several weeks with a barrier marked "travel at your own risk." It was entirely outside of the traveled portion of any highway. From the inferences from the testimony most favorable to plaintiffs we are unable to say that sixteen hours with fewer than three hours of daylight was sufficient under the circumstances to charge the city with constructive notice of the danger. If this conclusion is valid, as we believe it to be, there is legal excuse for the city's failure to replace the barrier in the interval.
Judgments affirmed.
Dissenting Opinion
It is my opinion that the judgment of the court below should be reversed. To affirm this judgment is to take the position that under the circumstances of this case, all facts and inferences of facts reasonably deducible therefrom being considered most favorably for plaintiffs, the minor plaintiff is to be adjudged guilty of contributory negligence as a matter of law, or the city is to be adjudged free from negligence as a matter of law. The majority of this court are "unable to say that sixteen hours with fewer than three hours of daylight was sufficient under the circumstances to charge the city with constructive notice of the danger." The evidence does not support holding as a matter of law that the city had no constructive notice of the danger. The real issue before this court, it seems to me, is whether the evidence adduced by plaintiffs was sufficient to entitle the question of defendant's negligence to go to the jury. This is not such a "clear case" as would justify its withdrawal from the jury.
The work of reconstructing the stairway was under the supervision and control of the city. The undisputed facts establish the dangerous condition of the lower portion of the stairway, comprised of a series of descending excavations. No third party was involved here *435 either in making the improvement or in leaving the premises in the condition they were at the time of the accident. The city alone was directly engaged in the work. Hence, the responsibility for exercising due care with reference to the traveling public, rested directly upon the city alone. This responsibility was recognized when the city erected barricades carrying the warning "Travel at Your Own Risk." Nothing further appears to have been done to close the stairway entirely to public travel.
Moreover, this duty of due care could not be absolutely discharged merely by setting up barricades and, thereafter, giving no more attention to the stairway or the approaches thereto. The duty was a continuing one. Some reasonable precaution against the removal of the barricades was necessary, or such adequate attention as would result in the replacement of the barricades if removed. It appears from the undisputed facts that the barricades erected by the city, were not in place for a period of nearly sixteen hours, from 4:30 P.M. on February 7, to 8:00 A.M., February 8, when the accident occurred. Conceding that of the sixteen hour period during which the barrier was down "there was something less than a total of three hours of daylight," it should be noted that there was some period of daylight immediately preceding thirteen hours of darkness. It does not appear that the city made any inspection at the close of day just preceding the long night ahead; nor does it appear that any inspection was made the following morning after the lapse of more than thirteen hours and prior to the accident.
The case of Beck v. Hood,
As to the question of the minor plaintiff's contributory negligence: the testimony indicates that the minor plaintiff had no knowledge of the defective condition of the stairway prior to her entrance upon it. It was only after she became committed to the use of the stairway and actually entered upon the descent that she became aware of the fact that it had not yet been completed. When she had reached the bottom of the completed stairway, she first observed the absence of wooden steps for the remaining 45 feet of the descent. She testified that she did not realize at first that these excavations, coated with ice, were in a dangerous condition since the first one was not so bad. The second dirt step, she testified, was about the same, the third a little *437 bad, the fourth about the same, the fifth rather bad. At this point she stated that she did not turn back because she was afraid of falling on the way back, and that she might be late for school. However, she decided to continue down the remaining dirt steps, covered with rough ice and having a surface of light snow. It was on the sixth or seventh step that she fell.
The minor plaintiff, in making her way down the stairway, managed to descend the wooden stairway in safety. It was only after she had reached the fifth or sixth step-like excavation, about two-thirds of the way down the entire descent, that the danger of the situation confronted her. At this point, travel in either direction was dangerous. The possibility of avoiding an apparent risk by a prudent selection of an alternative course, was no longer a matter depending on the exercise of due care. She made her choice and continued down the dirt excavations.
There is no question that the duty imposed upon an adult, is one that requires the use of such care as is usual under similar circumstances by a prudent person, that is, to look where he is going and to exercise reasonable diligence to avoid a dangerous hazard: Brinkos et ux. v. McKeesport City,
On the other hand, a child of thirteen years of age, although not conclusively presumed to be incapable of appreciating and guarding against danger, is held only to such measure of discretion as is usual in those of her own age and experience, and the measure of her responsibility for contributory negligence is her capacity *438
to understand and avoid danger: Kehler v. Schwenk,
