*1 Hyman. Appellant, v. Freund, Argued January J., 1954. Before C. Stern, and Ar- Musmanno Stearns, Bell, Jones, Chidsey, JJ. nold, appel- Shirk, for
K. L. with him Shirk é Shirk, Sr., ííilit. Lyman Windolph, him F. L. Hamaker,
John appellees. Ralph Barley M. for and Paul A. Mueller, 1954: March by Opinion Mr. Justice Bell, trespass against brought an action of Freund injuries resulting fall on the from a the defendants Hyman, Street, of the defendant, August Ephrata, afternoon of at 1 o’clock appealed 1951. She from the order entered nonsuit against the Court below. *2 walking pavement along
She was on the Locust talking Street about a foot behind Mrs. Frank and with day pertinent her. The was clear. Plaintiff’s testi- mony you “Q. was I as follows: 1’ [a show ‘C.P. No. photograph] and ask whether shows the along you along walking Locust Street that were with you walking along Q. Mrs. Frank? A. Yes. As were just Jury hap- Locust Street tell the Court and what pened. walking A. I Frank— . THE was . . I was WITNESS: with Mrs. and at Frank, factory factory Q. the on the At on Lo- Street — factory cust A. At Street? the on Locust I Street fell, factory Q. and I or Is, and— . . . fell, the the build- not, picture, that is on this No. A. shown ‘C.P. 1’? Yes, Q. that is a That is a A. house. house? That is a house. you step Q. And did fall? I on where A. fall near this step Q. I fall You fell tree, forward. on this Very Q. near A. the tree? close to the tree. it Where shows difference between the blocks? A. Down. you Q. Q. And fell down? Down. Toward the direc- you walking? tion A. The direction I were walk- was ing. happened you Q. And fell? A. I—it what as hurt very much ...” first,
Mrs. Frank did not Mrs.
see
Freund
but sud-
fall,
denly
outcry
lying
heard an
Freund
saw Mrs.
pavement facing
they
in the direction
were walk-
ing.
lying
pavement very
She
on the
to the
was
close
photograph
pave-
tree. The
block of
shows
slightly
slightly
ment was
or
raised
the other block
nearby
steps very
lowered
that there
two
were
“step”
factory
plain-
door. The
near the tree which
might
tiff mentioned
referred
we
either,
not a
believe she meant the raised block. There was
long
scintilla
evidence
this
to show how
difference
elevation
there was no evidence
existed;
why
looking
going, or
she
was
she
where
was
day-
could
broad
not see the difference
light
looking;
important
if
she had been
but most
there
elevation caused
was no evidence that this
all,
merely
step
her
near
She
fell on this
said she
fall.
her
the tree. There
no
she turned
is
evidence whether
slipped
tripped,
ankle or
or
caused
stumbled
what
fall.
It
hornbook
Lanni P.R.R.,
law
as stated
that,
“
hap
‘The mere
While
such
obvious
in
an authority directly
point
is
there is
necessary,
44
273.
In
Harrison v.
A. 2d
353
Pittsburgh,
22,
manhole cover
that case
off
sewer
slipped
extended approxi
middle of the
which
2
judgment
inches
mately
pavement.
above
non
points:
obstante
was sustained
two
veredicto
not sufficient
to show
(1)
neg
evidence was
did not
(2)
and
evidence
show
plaintiff’s
ligence,
the cause of her fall. The Court
the elevation was
: “The
24-25; 24)
said
elevation was
(pages
slight
there
no
nature,
consequently
neg
a trivial
it to
See: Burns
permitting
City
exist.
ligence
320 Pa.
A.
McGlinn v. Phila
487;
92,181
322 Pa.
A. 747;
supra;
Davis v.
delphia,
478,186
Potter,
Van
347 Pa.
We need decide whether an elevation of a side- walk block one inch its approximately adjoin- above block condition ing dangerous establish suffi- to (with essentials) cient other constitute negligence, failed since this case to ele- prove this was the cause of vation language her.fall. opinion supra, quot- Harrison v. 353 Pa., equally ap- from Davis v. plicable in the instant case. unnecessary
For these reasons it is to discuss the question contributory negligence.
Order affirmed. by Dissenting Opinion Mr. Justice Musmanno: adage readily acceptably passed No more has usage says pic- into current than the one which that a photograph ture is worth a in- thousand words. The troduced in this case reveals sidewalk Ephrata up Street in to be made of concrete slabs some point square. adjacent 3 or 4 feet At a to the trunk of a one of blocks tree, stands at an neighboring an inch or two above the one to which laterally joined it should have been for a continuous smoothly walking pavement surface. The follows the gentle slope plain- of the contour of the land and the proceeding higher tiff was from the end of the opposite to the end. lower One direc- offending tion would have seen once that the slab couple on an sat elevation a of inches above the lower advancing higher slab. Mrs. from the Freund, however, very easily level to the lower level could been appearance deceived of the because drop from one to slab the next was not extreme enough eye pedestrian to catch the normal of a yet deep enough it was off throw one one’s balance.
Here we have that situation which so often con- judge conscientious fronts the most a courtroom. Should he not on he should these facts allow the charge go jury? opin- to a I am of the peculiarly classically ion that the was one jury pass upon. one to. *5 the dif-
The to this: Was narrowed down depth dan- in to constitute a ference sufficient ger grade, in at the same time, that difference pedestrian, it could a still not extreme that deceive so unwary creating a snare for feet? We know thus his stairway apt in a that we are more to detect a fault descending. ascending than are when we are when we going steps take the Careful as we must be, we looking stairway great deal on faith a normal down body weight gone too far because fall of often has beyond voluntary control for arrest it in the event us to out that a tread is we should see at last moment place, broken or unstable. The in this never case, Freund, trodden this before. She pre- Frank host Mrs. Barbara who friend, by step pave- ceded her Frank or two. Mrs. knew the ment in well on the same street. Mrs. and, fact, lived plaintiff, in in York and was lived New Freund, Ephrata on her first the town visit. majority opinion points
The out that there nowas long in evidence to show how the difference again picture speaks a thousand existed. Here posture firm in words. I-t that kind of a reveals solid from a recent the elevated slab could not come which displacement. poet finds: tongues
“. . . in books trees, running in the brooks, good- in Sermons stones everything.” Allowing poetic phrase extreme license last finding “good everything,” agree in- we must story only geological stones can tell their own contemporary history. I believe that narrative average juror -picture looking here in .the evi- difficulty concluding dence have no would -the in. *6 solidity and stance of indi- sturdiness, tlie stone would position that bad cate it been for months at least.
While it is as we in Davis v. said true, depression irregu that “An 485, 487, elevation, larity in a be sidewalk so as court, trivial a matter of is bound to hold that there was no law, permitting yet, sagely toit as was exist,” Superior in Kuntz Court observed Superior “there zone Ct. shadow jury must where such be submitted whose duty take it is to account all the into circumstances. ultimately To hold result in the otherwise would court fixing dividing line the fraction of an inch, result which is absurd.”
I that the in this case come facts within believe they been zone and that should shadow sub- jury mitted to a which would have drawn them out into responsibility non-responsibility daylight of the full part the defendants. Marshall Estate.