36 A.2d 854 | Pa. Super. Ct. | 1944
Argued March 7, 1944.
Mania Silberman, wife of plaintiff, fell on an ice covered concrete sidewalk abutting defendant's premises in Scranton. She died from her injuries fourteen days later. In this action brought by plaintiff in his own right and as administrator of her estate the verdict of the jury was for $2,000 in favor of the husband. The lower court found that the testimony charged decedent with contributory negligence and, stressing the application of Hulings et al. v. Pittsburgh et al.,
Viewing the testimony in the light most favorable to plaintiff, as we must, these facts were established: Admittedly the defendant owned the land and the injury occurred on the sidewalk abutting it. Defendant was in possession and occupied the first floor of the dwelling house on the lot as a home for herself and family; plaintiff with his wife and daughter lived in the second floor apartment under lease from defendant. In broad daylight on the morning of February 6, 1943, plaintiff's wife left the house and had walked eastwardly but a few feet when she fell on the sidewalk. In the fall she suffered a fracture of the right femur at the hip joint and she sat helpless where she fell. She was observed by the witness O'Hara who came to *5 her assistance. His immediate interest was to move the woman into the house with the help of others and he did not observe the condition of the whole sidewalk. O'Hara testified that "at that particular flag [section of the concrete walk where he found the woman] there were ridges of ice"; that the ridges covered "two or three flags, the flag I stood on and the flag I found the woman sitting on." "Chunks of ice accummulated on there that was quite thick [estimated by him as `around two inches'] on those two flags . . . . . . at that particular place there I had a hard time to hold my own footing." He also said that the walk "that leads to the house wasn't in better condition." Plaintiff's daughter who also helped her mother into the house testified that the sidewalk was "bumpy and kind of thick in spots and rough" with "little ridges . . . . . . between an inch and a half and two inches thick" and that they "were practically all over the flags." Plaintiff's son who arrived at the scene shortly after the accident, testified that "the immediate flagstones in front of the house were hilly and rough" to a height of "an inch and a half to two inches."
In the Hulings case we did not intend to suggest a limitation on the law of negligence in sidewalk cases or to imply that in every case the plaintiff must identify, by direct testimony, the particular defect which caused the fall. What the case stands for is a reiteration and application of the principle that a defendant is not liable, though negligent, unless his negligence is the proximate cause of the injury. Cases involving injury on sidewalks are no exceptions to the rule. "Negligence is not a ground of recovery unless a causative factor of the accident":Davis v. Potter et al.,
Any line drawn between this and the Hulings case may be fine, but the difference between them is real. There was no testimony of obstructions on the sidewalk where Mrs. Hulings found herself after the fall. By reaching around from her position on the sidewalk she felt ridges of ice. The proofs of the existence of ridges on the sidewalk were general and from the testimony it was as probable that she slipped on a smooth, though small area of ice, as that an obstruction caused the fall. The circumstances were not sufficient to resolve the question in favor of that plaintiff, and although Mrs. Hulings appeared as a witness, she was unable to say that a ridge of ice caused the fall. Under the circumstances (as in Kohler et ux. v. Penn Township,
It was broad daylight and the ridges of ice were not concealed by a covering of snow; there had been a light drizzling rain making the ice more slippery. But defendant by failing to remedy the defect could not thus immure her tenant and avoid liability for injury to the tenant on the ground of contributory negligence, merely because the danger was apparent. In view of the location of the accident — only a few feet from the walk leading into the house — there is no room for the application of the principle (Birthisel et vir. v. Concord P.B. L.,
The testimony is that the sidewalk had been in the same dangerous condition for three or four days before the accident. In the light of the circumstances the jury properly may have charged the defendant owner with actual notice of the dangerous condition, since she lived on the premises. In any view, the court below was justified in submitting to the jury the question whether reasonable time had elapsed to charge defendant with notice, and for the removal of the obstructions. Goodman et al.v. Corn Ex. B. T. Co.,
The two rights of action, one under the Acts of 1851 and 1855, relating to actions for wrongful death, as amended by the Act of April 1, 1937, P.L. 196, 12 PS 1602, and the other, under the survival of actions statute of July 2, 1937, P.L. 2755, 20 PS 772, were properly consolidated into one action and tried together. Vincent, Admr. et al. v. Philadelphia et al.,
Reversed and judgment is directed to be entered on the verdict, against the defendant, in the sum of $2,000. *9