187 A. 287 | Pa. Super. Ct. | 1936
Argued April 24, 1936. The plaintiffs, husband and wife, have judgments against the City of Pittsburgh on account of injuries suffered by the wife as a result of a fall on a sidewalk. The city has taken appeals from the judgments entered and now insists that the court below erred in refusing its motions for binding instructions and for judgment n.o.v.
Since the plaintiffs have verdicts in their favor we will refer to the testimony in the light most favorable to them, giving them the benefit of every inference of fact which may reasonably be deduced from the evidence, as we are required to do. The wife plaintiff at about 8 P.M. on April 13, 1932, was walking alone on a sidewalk on 42nd Street a short distance from Davison Street in the City of Pittsburgh when she stepped on an uneven place in the sidewalk which caused her ankle *397 to turn and her to fall in such a way that she struck her head on a tree and was rendered unconscious. It was dark at the time but there was an electric light on the far corner of the two streets. The sidewalk was "slushy" as a result of rain and snow which fell the day before. For this reason an irregularity in the pavement at the point at which she turned her ankle could not be seen by her in the dark in the exercise of reasonable care. The sidewalk was of concrete and was constructed with expansion joints. At the point where the wife fell there was a joint which extended through the middle of the sidewalk parallel with the street. The plaintiffs' witnesses testified that at that point the cement block next to the property line was from 1 1/2 to 2 inches higher than the block towards the curb and that this condition had existed for more than two years. The wife was not familiar with this condition prior to the accident. She had passed along the street but upon the opposite side thereof. None of the witnesses for the plaintiffs made an actual measurement of the depression but gave their best judgment of the amount from observation. One witness at least who passed the point daily had observed the amount of the off set on a large number of occasions. Shortly after October 10, 1934 and about two and one-half years after the accident, two employees of the defendant made an actual measurement of the depression which measurement was repeated in February, 1935. They testified that actual measurement showed the off set on both occasions to be 1 1/8 inches.
The appellant first contends that the evidence conclusively establishes the fact that the difference in elevation was not more than 1 1/8 inches, and second, that the trial judge should have held as a matter of law that the sidewalk was reasonably safe and the case should not have been submitted to the jury.
The appellant in support of its first proposition relies *398
upon the case of McIntyre v. City of Pittsburgh,
We then reach the point where we must determine whether the court may say as a matter of law that in the situation shown to exist at the time of the accident proof of an off set of from 1 1/2 to 2 inches was not evidence of negligence on the part of the city. The law fixes the standard of duty by a municipality in the maintenance of sidewalks as reasonable care: Reed v. TarentumBoro.,
The extent of irregularity which may be present in a street without convicting a municipality of negligence *400
in its maintenance varies with other circumstances such as amount of travel, actual location of the rise or depression, character of material with which the pavement or walk is constructed, nature of the irregularity and other circumstances. This is illustrated by several cases to which we will refer. In Reed v.Tarentum Boro., supra, on appeal the case was sent back for retrial to determine whether the municipality was negligent. The appellant in the present case informs us that the paper books in that case show that a flagstone in a sidewalk was raised from 1 3/4 inches to 2 inches above the level of adjoining stones. InNewell v. Pittsburgh,
The decisions establish that an irregularity may be so slight that the court is required as a matter of law *401
to say that such unevenness is not evidence of lack of reasonable care, but there is a shadow zone where such question must be submitted to a jury whose duty it is to take into account all the circumstances. To hold otherwise would result in the court ultimately fixing the dividing line to the fraction of an inch, a result which is absurd. The true principle was tersely stated by Judge TREXLER in the case of Shafer v. Philadelphia,
Relying on the principles underlying the previous decisions rather than the exact amount of difference in elevation that may have appeared in any particular case, we are of the opinion that the court properly submitted the question of negligence to the jury. The accident occurred at night in the dark when there was slush on the sidewalk and the wife plaintiff did not have previous knowledge of the defect. The defect had existed for several years and was caused by a seam which ran longitudinally with the walk. There was sufficient off set to cause her to fall and be injured. The location was in the street of a large city where there was "considerable" traffic. While the amount of the depression was such that it was a close question for the jury that very fact is a controlling reason why the court could not dispose of it as a matter of law. That a person would turn his ankle on just such a defect as was shown to be present for a number of years was a result that the jury might have concluded the city should have anticipated.
Judgments affirmed. *402