221 Pa. 266 | Pa. | 1908
Opinion by
About two o’clock on Sunday afternoon, January 25, 1903, Agnes Y. Holbert, the plaintiff, and her sister, Mrs. Stevens, left the former’s home on East Walnut lane, Germantown, within the limits of the city of Philadelphia, to go to Indiana avenue. Their direct route was south along Magnolia avenue to Chelton avenue where they were to board astreet car to reach their destination. Magnolia avenue is fifty feet wide, and its general course is north and south. Both the cartway and the sidewalks are paved with brick. The Germantown branch of the Philadelphia and Reading Railroad crosses it at a right angle. Only the eastern footway or sidewalk is continued
When the plaintiff arrived at the north side of the bridge she discovered some ice at the mouth of, and also in, the tunnel. She proceeded along the sidewalk and when she was about halfway through the tunnel, she slipped on the ice, fell and broke her left arm in two places. Her description of the attempt to pass under the bridge and of the accident is as follows: “I went on and I came, by picking my way carefully, and I stopped and looked where I was going, and I saw a bare spot at my right. I thought, here is a place of safety, I will get on that place; so I could see my way on through the place in safety at that place. Just as I was stepping from the ice that I was standing on, on to this place of safety, my feet went out from under me and I fell, and I broke my left arm in two' places — at the wrist and at the elbow.” The plaintiff claimed, and her testimony tended to show, that the walk under the bridge except a few small places was covered with ice from one to two inches thick, and that part of the ice was very rough. The bridge was built in 1895, and there was ample evidence in the case to warrant the jury in finding that during the winter seasons since its construction ice invariably accumulated on the sidewalk beneath it. It was in evidence that tüe winter of 1902-3 was “a very hard winter — a hard, miserable winter .... it [sidewalk] was icy all that month [January, 1903].”
This action was brought by the plaintiff to recover damages for the injuries she sustained in falling on the sidewalk under
A municipality is not liable for injuries resulting from the general slipperiness of its streets or its sidewalks occasioned by a recent precipitation and freezing of rain or snow. During the night rain or snow may fall and freeze so that streets and sidewalks are slippery and in a dangerous condition, but it manifestly would be unreasonable to ho]d the city liable for injury to a pedestrian the following morning caused by his falling on the sidewalk. Therefore, persons who undertake to pass over the sidewalks of a city, made unsafe or dangerous by the freezing of recent falls of rain or snow, knowT their condition and assume the risk, and if they fall by reason of the smoothness of the ice, the law imposes no liability upon the city.
While, however, the city is not responsible for the general slippery condition of its sidewalks caused by the recent falling or freezing of rain or snow, yet the rule does not extend so far as to protect the city from liability for injuries caused to a person by slipping on ice in a street or sidewalk where it has accumulated by reason of a defect in the street or walk or by reason of the neglect to construct and maintain suitable drains to carry off the water : Decker v. Scranton City, 151 Pa. 241; Mancross v. Oil City, 178 Pa. 276. It is the duty of a municipality to keep its streets, including its sidewalks, in a reasonably safe condition so that pedestrians using the sidewalks and exercising care may do so with safety. A sidewalk may be made defective or dangerous by the accumulation
Recurring now to the case in hand, we think the evidence was sufficient to warrant the jury in finding that the plaintiff’s injuries were caused by the negligence of the city. They were not caused by the general slipperiness or smoothness of the sidewalk resulting from the precipitation and freezing of recent falls of snow or rain. If they were, of course she could have no claim against the city. They were caused by the condition of the sidewalk beneath the bridge, made unsafe and dangerous to travel by the accumulation of ice, which could, and should, have been prevented by the city. The con
From what has been said it will be observed'that it was not a question -whether the plaintiff’s injuries resulted from a ridge or hill of ice on the pavement beneath the bridge, but whether the icy condition of the pavement made it dangerous and unsafe for pedestrians using the sidewalk, and that such condition was attributable to the negligence of the city. One of the witnesses' testified : “ It [condition of the pavement] was
Whether the plaintiff exercised proper care in passing along the sidewalk, and whether she fell from any want of care on her part, were for the jury. It has been argued that as she approached the bridge she saw ice on the pavement, both in and outside the tunnel, and that, therefore, it was negligence for her to attempt to pass through the tunnel. That position, however, is wholly untenable. There was nothing there to admonish her that by the exercise of care she could not pass with safety through the tunnel. She had done so on a previous occasion when the same or similar conditions existed. The danger was not immediate or imminent. The sidewalk was in constant use by the people of that vicinity. Of course, other persons had fallen on the ice there, but many others had passed over it with safety. In fact, just as the plaintiff was entering the tunnel another person came out of it and passed her. There were spots or places in the pavement where there was no ice which the plaintiff attempted to use to avoid the ice. Under the circumstances, therefore, it was not negligence, to be declared by the court, for the plaintiff to use the sidewalk. As said in the recent case of Steck v. City of Allegheny, 213 Pa. 573. (p.576): “When the testimony shows a defect of such character that the street can be used with safety by the exercise of reasonable care, notwithstanding its
There could be no question under the evidence that the defendant knew of the unsafe condition of the walk. Since the construction of the bridge, eight years previous, it has been dangerous in the winter months, caused by the accumulation of ice resulting from the peculiar conditions existing at the place. These conditions as well as the danger resulting therefrom were obviously and necessarily known to the defendant. The danger had existed for years in the winter season, and hence it is manifest that the city must have had knowledge of it. Two of the witnesses testified specifically as to the existence of ice on the sidewalk at that place during the month of January of the year 1903. What everybody else sees the city must see.
The only error assigned is the refusal of the court below to.