158 A. 659 | Pa. Super. Ct. | 1931
Argued October 9, 1931. In October, 1928, the City of Philadelphia was constructing a subway under a portion of South Broad Street and in connection therewith laid down temporary sidewalks, constructed of two-inch planks. At a point on the east sidewalk about four feet from the curb and opposite the south building line of Chestnut Street there was a manhole, approximately three feet in diameter, leading into a conduit of a public utility and covered with an iron disc, securely fastened. A circular hole, corresponding in size with the disc, was cut out of the planking in order to afford access to it. This left the upper edges of the planks two inches above the level of the iron cover; the edges were then beveled around the opening, producing a sloping approach *121 from the upper side of the planks to the cover of the manhole.
Nearly three months later, December 21, 1928, the plaintiff, familiar with the locality and accompanied by a friend, was walking north on the east side of Broad, between Sansom and Chestnut, at a time when the sidewalk was crowded with pedestrians; as they approached the corner of Chestnut plaintiff stepped, with his left foot, on the beveled edge of the planking surrounding the manhole; his ankle turned and his foot slid across the iron covering; a fracture of one of the ankle bones was suffered.
The trial of his action against the city for damages resulted in a verdict in his favor for $500; the court below, in an opinion by STERN, P.J., granted defendant's motion for judgment in its favor n.o.v. and plaintiff has appealed.
No material facts were in controversy and the only variation in the testimony was in the manner in which the witnesses, called by the opposing parties, characterized the construction around the manhole. Appellant's testimony was to the effect that the edges had been "leveled off in a crude way, but still there was a very rough edge there." Another said, "It looked to me as if it was beveled with probably one of those slab hatchets chopping it down." The city's inspector of construction testified, "We beveled the edges so as to produce about a forty-five degree angle, so as to produce safe conditions as far as possible."
Appellant's account of the accident reads: "A friend of mine and I were going to lunch, north on Broad Street, he on the house side and I on the gutter side. Of course, there was a holiday crowd, just before Christmas it was. It is always bad there, and going north and south on Broad Street, and east and west on Chestnut Street about the same time. We were milling around in the crowd, trying to go west on Chestnut Street. Just as I got to the corner, I *122 went down as if I was shot. Of course, my friend — I could not fall to the ground — held me. I had hold of his arm, anyway. I could not fall all the way on account of the crowd. I just seemed to shoot along and I found out later that I turned my ankle in this hole and slid to the opposite side. Q. Could you see the hole before you stepped into it? A. No, on account of the people my face — ...... By the Court: Q. Exactly how did you fall in that place, in that hole? I did not understand that. A. I probably stepped on the edge and turned my ankle and slid. Q. Stepped on the edge — you mean, on the board? A. Yes. Q. You cannot call that a fall into a hole. You mean, you got your foot on the edge of the board? A. Turned my ankle, slid on the edge. Q. On the edge of the board? A. Probably half over and half not. Q. You say you probably did. Do you know what you did, what happened? A. I just turned my ankle on the edge of that hole and slid across the hole. Q. Are you sure that is what you did? A. Yes, sir."
The responsibility of the city for the construction and maintenance of the sidewalk was conceded. Apparently recognizing the applicability of Becker v. Phila.,
In our opinion, there was no evidence from which a jury should be permitted to conclude the city had been negligent in the construction or maintenance of this sidewalk.
Judgment affirmed.