Knapp v. Bradford City, 247 A.2d 575

Knapp v. Bradford City

247 A.2d 575

Pa.

1968

Check Treatment

Opinion by

Mr. Justice Cohen,

The plaintiff Mrs. Knapp recovered in the instant personal injury case as the result of her fall аfter catching her heel on a protruding curb in the City of Bradford (City). The top of the curb extended 1%" аbove the level of the adjacent sidewalk as a result of “settling” conditions after City had reрlaced the curb and relaid the brick sidewalk. On the day of the occurrence, Mrs. Knapp was walking on the sidewalk and after waiting for three cars to pass attempted to cross the strеet. Upon being distracted by hearing a fourth car (previously unobserved) she caught her heel оn the curb and fell into the street causing the injury for which the jury gave her this verdict. Her husband recovered medical expenses and loss of consortium predicated on her recovery. City was found solely liable and now appeals from the failure of the trial court to grant motions for judgment n.o.v. and for a new trial.

City contends that Mrs. Knapp was guilty of contributory negligence as a matter of law and hence its n.o.v. should have been granted. We agree and therefore reverse.

Mrs. Knapp’s own testimony indicates not only that this “defect” was an open ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and obvious danger, but also that she observed it on the day in question. 1 She fur *174 ther testified that she tripped when she turned her head in mid-step as the result of a sound of an automobile distracting her. 2 Her own testimony precludes her recovery.

“[0]ne who fails to observe a dangеrous condition plainly visible and nevertheless proceeds without regard to his own safety must be hеld guilty of contributory negligence as a matter of law”, Miller v. Exeter Borough, 366 Pa. 336, 77 A. 2d 395 (1951). It follows that one who sees such a defеct and continues on is likewise contributorily negligent. Plaintiff relies on the long standing corollary of this rulе: “One who, in broad daylight, walks into an obvious defect in a sidewalk is presumptively negligent and the burden is upon that person to show conditions outside of himself which prevented his seeing the defect, or which would excuse failure to observe it. McDonald v. Mars Borough, 371 Pa. 625, 92 A. 2d 199; Leson v. Pittsburgh, 353 Pa. 207, 44 A. 2d 577; Lerner v. Philadelphia, 221 Pa. 294, 70 A. 755. . . .” Walsh v. Philadelphia, 175 Pa. Superior Ct. 622, 106 A. 2d 851 (1954). She contends that she has met this burdеn by showing that the sound ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the automobile distracted her attention. In this she relies on Pro v. Pennsylvania Railroad Company, 390 Pa. 437, 135 A. 2d 920 (1957); Sculley v. Philadelphia, 381 Pa. 1, 112 A. 2d 321 (1955); Sand *175 herr v. Pottsville, 201 Pa. Superior Ct. 547, 193 A. 2d 625 (1963). In the cited cаses and in every other case the distraction was such that plaintiff was prevented from observing the obvious defect by the distraction. Plaintiff points out no case in which this exception has been extended to one who has already observed the defective condition. To extend the exception so far would be to defeat the “open and obvious danger” rule altоgether. Plaintiff saw the danger and failed to heed it.

Furthermore, even if Mrs. Knapp had not observed the curb this is not the type of distraction which could excuse her failure to do so. The sound of аutomobiles is hardly an uncommon occurrence in urban America. City inhabitants are required to hаve the ability to look where they are going while remaining conscious of their other surroundings. Their аttention should not be diverted by the ordinary sounds of city traffic. In this instance there is nothing so removed from the ordinary to legally constitute a distraction. 3

Plaintiff does not contend that this noise creаted a sudden emergency or peril which caused her to step involuntarily into the defect, Fisher v. City of Philadelphia, 112 Pa. Superior Ct. 226, 170 Atl. 875 (1934); Dmifee v. City of Philadelphia, 97 Pa. Superior Ct. 413 (1929). This sеldom used doctrine mentioned by the court below is inapplicable since plaintiff did not testify thаt the approaching car presented a danger in any way. The sound of an automobilе riding ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍along a busy street can hardly be reason for peril in this day and age. Regardless of the viability оf the doctrine of “emergency or peril”, plaintiff has failed to place herself within it.

For thеse reasons the court below erred in submitting the question of contributory negligence to the jury *176 and shоuld have granted the n.o.v. in favor of the defendant City.

Because of our disposition of this casе we are not required to reach appellant’s contention that City was not negligent and wе voice no opinion on City’s negligence.

Judgment reversed and judgment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍n.o.v. entered for defendant.

Mr. Justice Roberts dissents. Mr. Justice Musmanno did not participate in the decision of this case.

Notes

“Q. And bad you noticed the condition of the sidewalk at this particular intersection prior to the day that you fell? A. Yes. Q. And what did yоu notice that it was prior to the day you fell? A. Prior to the day I just noticed that it was rough there. . . . Q. And did you look down at the curb? A. Yes. Q. Any time dur *174 ias this? A. Yes. Q. When did you look down at the curb? A. After I cheeked the light I glanced аt the curb. Q. After you looked at the light? A. To see I could go on green. Q. And after the ears passed you, you again looked down at the curb? A. Yes. Q. And you saw this condition existing at the curb, is that right? A. Yes.”

“Q. Did you continue to look at the curb as you took your step? A. No, this car distracted me and I checkеd to see if that car was going to turn. . . ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍. Q. And then you turned your head to look at the car? A. Yes. Q. And you continued to walk while you were looking at the car, is that right? A. Yes.”

See Restatement 2d, Torts, §289, comment b (1965).