57 Pa. Super. 566 | Pa. Super. Ct. | 1914
Opinion by
The admirable frankness and candor of the witnesses, including the manager of the defendant, made easy for the jury the performance of their function in ascertaining the facts involved in this appeal. They may thus, be briefly stated: About one o’clock on the afternoon of an October day the plaintiff, an elderly lady, was pass-, ing along the sidewalk in front of the premises of the defendant on one of the most congested blocks of perhaps the busiest street in the city of. Pittsburg. In common with the hundreds of other pedestrians, she was carrying a hoisted umbrella to protect herself from the rain then falling heavily. The defendant, in the conduct of. its business, was a large consumer of ice which it had delivered daily by an ice company. The latter had been directed to deliver this ice through an opening in the sidewalk almost immediately in front of the entrance to the store. This opening, maintained • by the defendant for that purpose, was approximately two by two and one-half feet. When not in actual use it was protected by an iron door flush with the surface of the pavement. The hinges by which the door was raised when the opening was to be used were along the' eastern edge of the opening and the door, when raised, was held in place by an iron stanchion or rod extending from the top of the door, as it stood open, to the western end of the opening. The entrance to the store was protected from sun and weather by an overhanging canopy projecting from the building and extending to or near to the curb. The defendant had further given direc
The learned trial judge could not have declared, as matter of law, that under these circumstances the plaintiff was guilty of contributory negligence. It is true if her eyes had been fixed exclusively on the sidewalk at her feet at the instant before she stepped into the opening, she certainly could have seen it. Many cases have held, however, that the law imposed no absolute duty on. the plaintiff using a city sidewalk requiring her to concentrate her vision upon the spot on which she was next to • step. The plaintiff was also to use her senses to see that she did not-jostle some other pedestrian into danger, and it was clearly her right, as well as her duty, to protect her face and eyes from injury from the bobbing umbrellas of others, and generally to be mindful of all of her surroundings. We content ourselves by quoting the following excerpt from the opinion of President Judge Rice in Powell v. Wilhelm, 49 Pa. Super. Ct. 271: “The reasonable care which the law exacts of all persons in whatever they do involving the risk of injury requires travelers on the footways of public streets to look where they are going; but this
Did the evidence disclose a legal foundation for a finding by the jury that defendant had been negligent in permitting this opening on the crowded' sidewalk to be used in the conduct of its own business without providing for the protection of pedestrians lawfully using the footway. In Scheafer v. Iron City Sand Co., 31 Pa. Super. Ct. 476, we endeavored to point out the nature and extent of the liability of the owner or occupier of property who maintained such an opening in the sidewalk. Certainly there is no declaration of any legal principle in that case which would tend to support the contention the defendant here could escape responsibility. We have no doubt of the correctness of the conclusion'there reached under the peculiar circumstances of that case. In Powell v. Wilhelm, supra, under a state of facts much more nearly resembling those in the case at bar, it was held that a brewing company, whose driver was delivering beer to the occupier of certain premises and for that purpose had removed the protecting cover of an opening in the sidewalk leading to the cellar and left it for a considerable time unguarded, was liable to a pedestrian who was injured by falling into the opening. But that case is no authority for the proposition that the occupier of the premises would have been relieved from responsibility had the action been against him. So, even if it can be successfully argued that the evidence in this record would have supported an action against the ice company for the negligence of its servants, it by no means follows the defendant is relieved of liability. In Doll v, Ribetti, 203 Fed. Repr. 593,
In the present case we have no testimony that would enable the- defendant to assert the ice company was an independent contractor, for the negligence of whose servants it alone must be responsible. On the contrary, the evidence establishes that the delivery of the ice through this opening was directed by the defendant; was exclusively for its use and benefit; and that the only attempt it had made to discharge the responsibility imposed on it by the law, in maintaining a dangerous opening on the sidewalk, was a direction to the employees of the ice company that they must be careful while using the opening to guard the interests of pedestrians. This, under no one of the many cases brought to our attention, would be sufficient to relieve the owner
It is true that in the answer to the defendant’s third point (third assignment) the learned trial judge inadvertently said- the plaintiff had a right to presume that the sidewalk was perfect, and had this instruction remained without qualification, the defendant might have had good cause to complain; but at the conclusion of
Judgment affirmed.