75 Pa. Super. 417 | Pa. Super. Ct. | 1921
Opinion by
In this action of trespass the plaintiff sought to recover damages for serious personal injuries occasioned by a fall on a street of the defendant borough, the alleged cause of the fall being an accumulation of ice on the street, which the defendant negligently permitted to remain for a- long period of time after notice. The trial resulted in a verdict for the plaintiff, but the court thereafter entered a judgment in favor of the defendant notwithstanding the verdict, and the plaintiff appeals. Our inquiry, therefore, is to ascertain whether or not the court correctly applied the pláin legal principles controlling such cases to the evidence offered by the plaintiff, giving to that evidence every reasonable construction favorable to him which his verdict entitled him to have.
The following facts clearly appear and for the purposes of this appeal may be regarded as established: The plaintiff was walking along the street in question, before daylight, on a cold winter morning, following a long period of very severe weather. The street was cut along a hillside. ' The water main of the defendant bor
The plaintiff had just passed under an arc light, and consequently was stepping into his own shadow, when he heard a horse and sleigh approaching from behind. He undertook to step aside to permit the vehicle to pass and in doing so, slipped on the ice and was seriously injured by his fall.
Upon this state of facts we think there was warrant for the following assertion in the brief of counsel for appellant, namely, “The jury has fouqd and the court below has refused to disturb the findings (1) that the borough had sufficient notice of the character and quantity of the ice which had accumulated on the roadbed; (2) that in view of the quantity and character of said ice, the borough was negligent in not removing the same or rendering it harmless; (3) that the plaintiff was not guilty of contributory negligence, and (4) that plaintiff was thereby injured.”
How then does the learned court below justify the judgment he entered? His opinion thus answers: “The gravamen of the statement lies in the averment of flee accumulated on and prior to February 4,1918, in large ridges and hummocks on the roadbed.’ The proof to
We are all of opinion the learned court below, in reaching the conclusion indicated by the above quoted statement, must have misapprehended the significance of the plaintiff’s testimony as a whole and constructed his theory probably upon some single expression let fall by him in the course of the delivery of his evidence. In such a case it is safer for the appellate court to rely on the exact language of the witness rather than attempt to paraphrase it or discuss it in narrative form. Omitting the questions propounded and condensing as much as possible the answers, the plaintiff gives this version of the accident: “I was traveling where the horses would walk. I did step out of that portion (the road) when I fell......I heard a noise and I stopped and looked around and there was a horse and cutter coming between me and the light.... i .1 stopped (in my tracks), then I stepped to the south side. I took about two steps, I think, I am not sure, about two steps, then I fell. I took them as cautious as I could. I did not want to fall there. I did not know the condition at that particular place but I knew there had been ice accumulating there right along. It had run out at different places and that night it snowed a little bit, and there was a little snow on it. I think they (the horses) were just about passing; no, I fell just before they got to me and they passed me while I laid there. They didn’t stop......There had
In various forms, both on examination and cross-examination, the plaintiff substantially repeated this version of the circumstances and conditions immediately at the point and the time of the accident. We are of opinion they substantially supported the averment in his statement of claim and we are unable to see how the defendant could successfully predicate upon such testimony the proposition that there was a material variance between the pleadings and the proof. The learned court below therefore fell into error in denying to the plaintiff the fruits of his verdict.
The judgment is reversed and the record remanded to the court below with direction to enter judgment on the verdict.