45 A.2d 366 | Pa. Super. Ct. | 1945
Argued Oct. 25, 1945. This is a pedestrian crossing case against a municipality in which husband and wife brought an action in trespass to recover for damages arising out of injuries sustained by the wife plaintiff. The jury returned a verdict in the amount of $2,000 for the wife and $500 for the husband. Defendant filed a motion for judgment n.o.v. *526 on the ground that the wife plaintiff was contributorily negligent and a motion for a new trial on the ground that the verdict was excessive. Both motions were refused and this appeal followed.
The wife plaintiff, Christine Contillo, on the evening of March 31, 1943, at about 8:30 p.m., was on her way to a theatre in East Liberty, Pittsburgh, Pennsylvania. She waited at the corner of Frankstown Avenue near Penn Avenue for the lights to change and a street car to pass before attempting to cross at the customary place from the north sidewalk to the south sidewalk. As she stepped from the curb, her foot went into a hole five inches deep and two feet long and a foot wide, about twelve inches from the curbing. She testified that she did not see the hole because it was covered with water, and the testimony shows a generally wet condition all over the whole area where the accident occurred. When the wife plaintiff fell, she fractured her ankle and sustained other injuries.
The verdict of the jury resolved all conflicts in the testimony in favor of the plaintiffs and consequently they must be given the benefit of every fact and inference of fact which may be reasonably deduced from the evidence and the testimony must be read in the light most favorable to them. Christ v. Hill MetalSheet Roofing Co.,
In support of its motion for judgment n.o.v., the defendant endeavors to bring the facts of the case at bar within the rule of those cases which hold that a person who is faced with a choice of two routes, one known to be safe and the other to be subject to risks and dangers, *527
must choose the former, or otherwise assume the risk of being contributorily negligent as a matter of law. Levitt v. B.G.Sandwich Shops Inc.,
There is no evidence that the wife plaintiff was aware or should have known of the dangerous condition of the precise place in the street where she stepped, since it would appear that leaving the curb, and going onto the street, she was confronted with only wet surfaces to step on, surfaces throwing up a reflection under the glare of electric lighting, so that one place in the street quite resembled another. It is in evidence that "where she (the wife plaintiff) stepped off it looked just like it was level. It didn't look like there was a hole. The fact, it was wet all over." As stated by the learned court below, "Here the plaintiff recognized no pool but only the wet surface of the pavement, a condition which was general over the area into which she was required to step if she was to cross at the crossing." Whether she should have observed the pool by the curb and distinguished it from other damp places along the street was for the jury to determine. It has frequently been held that where an otherwise apparent defect or depression is covered, a pedestrian should not be charged with contributory negligence for failing to observe it; in such cases it is a question for the jury under proper instruction from the court. Kellow v. Scranton,
In Clifford v. City of Philadelphia et al.,
The cases relied upon by the appellant are clearly distinguishable from the present case. In Brown v. Philadelphia,
In Lerner v. Philadelphia,
A verdict will not be set aside on the ground that the damages are excessive where there is ample evidence to sustain it. Morrisv. Zinn,
The verdict for the husband in this case, $500, was for medical expenses and loss of his wife's services, the medical expenses amounting to $255. As a result of her injuries, a cast was kept upon the wife's left leg for seven weeks, during most of which time she was confined to bed. She was compelled to use crutches for three months, and according to the testimony, has a thirty to forty per cent. permanent limitation of the left ankle functionally.
It is the duty of the trial court, in the first instance, to control the amount of the verdict rendered by the jury. It saw and heard the witnesses, is in possession of all the facts as well as the atmosphere of the case, and by reason thereof is in a better position to do even-handed justice between the parties than an appellate court can be. An appellate court will reverse the trial court for approving the amount of a verdict only where this course is imperative, and where the verdict is so grossly excessive that sustaining it evidences such a clear abuse of discretion on the part of the trial court as shocks the appellate court's sense of justice. King v. Equitable Gas Co.,
Judgment is affirmed. *530