273 Pa. 501 | Pa. | 1922
Opinion by
This appeal by the defendant borough is from a judgment in favor of the plaintiff, Miss Annie Davis, in an action for personal injuries sustained by falling upon a sidewalk on the east side of Gilbert Street, near Cherry Street, in said borough. At the place of accident there had formerly been a brick walk which had largely disappeared, leaving occasionally a brick or stone resting upon or imbedded in the earth, added to which were roots of trees and a general uneven surface, while recent rains and frost had left the ground wet and soft. It was on a main street of a populous borough, and as plaintiff was passing along this walk, on March 22, 1917, she stepped upon a brick, to keep out of the mud, and it tilted or turned under her foot, whereby she was thrown and seriously hurt. This brick was imbedded in the ground and there was nothing to indicate it was unstable.
A borough is not an insurer against accidents and is only bound to use ordinary care to maintain its walks in a reasonably safe condition for public use. Whether this walk was such was for the jury. True, it is not necessary that a walk be kept in perfect repair or with an entirely smooth surface (Purcell v. Riebe, 227 Pa. 503); but considering the numerous defects, including the unstable character of the bricks and stones, when stepped upon, it cannot be declared as a matter of law that this was a reasonably safe walk. Nor can it be declared that such an injury as complained of was not the natural and probable consequence of the dilapidated condition in which this walk was suffered to remain.
There is here no question of notice, for the walk had been for years in the same open and notoriously bad condition, which was shown, inter alia, by the testimony of
The trial court properly allowed plaintiff, after the two-year statute of limitations had run, to amend her statement of claim so as to aver a brick in place of a stone as the object with which her foot came in contact. The cause of action was the same whether she stepped on a flat stone or a brick: see Levin v. Clad & Sons, Inc., 244 Pa. 194; Phillips v. Erie Co. Elec. Co., 249 Pa. 445; Rick v. R. R. Co., 232 Pa. 553.
It was competent for plaintiff to show, by photographs or other evidence, the condition of the walk at the place in question, especially as bearing upon the subject of
The reasons given by the court below, in the opinion refusing defendant’s motion for judgment n. o. v., are not assignable as error, nor is the refusal to grant a compulsory nonsuit.
The judgment is affirmed.