10 A.2d 100 | Pa. Super. Ct. | 1939
Argued October 16, 1939. Plaintiff was injured in stepping into a hole in the crosswalk of Dawson Street at its intersection with Semple Street in the city of Pittsburgh. The jury awarded damages but the verdict was set aside by the court and judgment entered for the defendant n.o.v. on its conclusion that the evidence charges plaintiff with contributory negligence barring recovery.
We are of the opinion that the question of plaintiff's negligence was for the jury and the judgment will be reversed.
At the intersection of Dawson and Semple Streets the south sidewalk of Semple Street extended, intersects Dawson Street at right angles. Plaintiff, a woman 52 years of age, employed as a cook in downtown Pittsburgh, on her way home from her work on January 27, 1936, left a south bound street car on Ward Street and after making some purchases in the neighborhood walked east along the south side of Semple Street to Dawson Street and committed herself to the crossing. Within *605 the limits of this crosswalk of Dawson Street a cobblestone had been removed from the pavement near the street car track leaving a hole about 12 inches long, 9 inches wide and 7 inches deep. Plaintiff's right foot was caught in stepping into this hole; she fell to the ground and in falling, with her foot wedged in the hole, both bones of the leg were broken.
The evidence is clear that this defect in the cartway was in the path of one properly crossing Dawson Street on the south crosswalk at this intersection and that it created a condition dangerous to pedestrians, that this condition was obvious and had existed continuously for more than three months and up to the time of plaintiff's injury. Defendant's negligence is conceded as it must be, for a municipality is liable in damages for injuries sustained in consequence of its failure to use ordinary care in the maintenance of its streets, and the failure to keep them in a reasonably safe condition for public use. The existence of the hole in the pavement for more than three months charged the defendant with constructive notice of the condition of the crosswalk. Lawrence v. Scranton City,
The verdict of the jury resolved all conflicts in the testimony in favor of plaintiff and on the question here involved she must be given the benefit of every fact and inference of fact which reasonably may be deduced from the evidence. O'Brien v. JeannetteBorough,
Plaintiff had lived continuously on Parkview Avenue one block east of Dawson Street, since 1930 and was familiar with the neighborhood, particularly east of Dawson Street. She testified that the occasions were few when she crossed Dawson Street to the west. The hole in the crosswalk was at the east rail of the street *606
car track near the center of the street, and she said that she had not walked over this crosswalk until the day of her injury within the period that the defect existed according to the testimony of other witnesses. (See Upperman v. Ford City Boro.,
Plaintiff is relieved from the charge of contributory negligence as a matter of law, in failing to see the hole in the crosswalk in time to avoid the injury by facts *607
which take the case out of the rule of Tauber v. Wilkinsburg,
The jury were justified in finding that plaintiff failed to observe the defect under circumstances which excused her. The injury occurred on January 27, 1936 between 5:30 and 5:45 in the afternoon. The sun set at 5:31. It was dusk with low visibility. The street lights were turned on that evening at 5:50. Plaintiff testified that one could see ahead only 6 or 7 feet. A newsboy 60 feet away, who fixed the time of the accident at 5:45 and who came to her assistance, testified that he could not see her plainly because "it was dark, kind of dark, just between dusk, and snow was flying around but I could see an outline of a woman." There was some wind and though it was not snowing, the snow from the ground was blown about in whirls. There was seven inches of snow on the ground that day and the main highways were coated with rough ice, though worn bare by traffic in spots near the scene of the accident. The temperature was about 6 degrees above zero. Plaintiff testified that though she was watching her pathway she didn't see the hole because there was "dirt or snow around there" and there was a half newspaper in the hole and that as she observed it, the surface of the walk *608
appeared level. Stolpe v. Duquesne City,
Much stress in the argument and by the court below has been placed upon the following excerpt from the cross-examination of plaintiff. Q. And so you were looking and could see the rail right beside this hole? A. Yes. Q. And yet you didn't see the hole right beside the rail, is that right? A. Yes. Q. Why not? A. I just didn't look at it, that is all, because the wind was blowing and I looked back and forth. Torn from its context and standing alone this may be unfavorable testimony but if read with plaintiff's testimony as a whole it does not necessarily bar her recovery. Cuteri v. West Penn Rys. Co., supra. "A court will not declare a person guilty of contributory negligence unless the evidence of his negligence is clear and unmistakable. InMcCracken v. Curwensville Boro.,
Judgment reversed and directed to be entered on the verdict.
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