22 A.2d 603 | Pa. Super. Ct. | 1941
Argued October 14, 1941. Plaintiffs, husband and wife, brought this action in trespass against defendant for injuries to the wife plaintiff as the result of a fall occasioned by a defective sidewalk. Defendant offered no evidence, and at the conclusion of plaintiffs' case asked for binding instructions which were refused. Judgments were entered on the verdicts for plaintiffs. Defendant's motion for judgment n.o.v. was dismissed. These appeals followed.
The only question here involved is whether, under the evidence, wife plaintiff was guilty of contributory negligence as a matter of law.
Considering the testimony in the light most favorable to her, as we must, the following material facts appear: At approximately 11 a.m. on the morning of September 19, 1939, wife plaintiff, seventy years of age, was walking westwardly on the paved sidewalk along the north side of Buttonwood Street approaching Eighth Street in the City of Philadelphia. Her daughter was in the middle of the sidewalk pushing a baby carriage with a child in it. Her granddaughter was on her daughter's left, and she, wife plaintiff, was on her daughter's right. As they approached the northeast corner of Eighth and Buttonwood Streets, projecting steps leading from a house narrowed the walking space of the sidewalk. Wife plaintiff "dropped back a bit" to permit her daughter to pass with the baby carriage. In turning to resume her former position alongside of her daughter, she stepped into a hole which was in the middle of the sidewalk, causing her to fall and sustain injuries. The baby carriage had passed over the hole. This, together with the position of the parties, prevented her from seeing the defect. This depression in *383 the sidewalk was three inches wide, five inches long, and three inches deep.
This is not one of those cases in which plaintiff steps into a hole and shows no external conditions which prevented her from seeing it. See D'Annunzio v. Philadelphia Suburban Water Co. etal.,
"It was her duty, of course, to look where she was going and, by the exercise of ordinary care, to avoid danger which was before her; and if, as a reasonably prudent person, she could have avoided it by the exercise of such care, she cannot recover for her injuries": Becker v. Philadelphia,
The facts in Duvall v. City of New Castle,
In Becker v. Philadelphia, supra, the plaintiff, after emerging from a crowd, stepped into a hole in the sidewalk and was injured. At the trial a nonsuit was entered. The Supreme Court in reversing said (
The situation shown by the testimony in the present case does not parallel the facts in Mulford et ux. v. Philadelphia RapidTransit Co. et al.,
Judgments are affirmed. *385