Boley Boley v. Glassport Bor. , 1927 Pa. Super. LEXIS 175 ( 1927 )

Opinion by

Henderson, J.,

The plaintiff, Annie K. Boley, stepped into a hole in the brick pavement on Sixth Street in the Borough of Glassport and in falling sustained a serious injury to her knee. The accident occurred on the 22d of February, 1921, at about five o’clock in the evening. The street was paved between the curbs, but there were no sidewalk's; pedestrians using the street therefore walked on the pavement. There was a ‘ ‘ rather sharp ’ ’ downward grade in the direction Mrs. Boley had taken. She was accompanied by her daughter, a young woman. They were going to work at a place where Mrs. Boley was employed and were walking near the curb at their right. The hole referred to was about nine inches deep and about two feet wide. The pavement had settled there because the street had been opened the fall before by a gas company, to lay a gas main along the street. Two or three inches of snow covered the ground, and as stated in the plaintiff’s evidence, the hole was filled with snow because of which she did not see the defect in the pavement. She passed down and up the street frequently, but had been in the habit of crossing from her home to the other side of the street in going down because in so doing she faced the traffic moving toward her. She was corroborated by her daughter who picked her up when she fell and the nature of her injury was not disputed. Her occupation was that of a janitress. ¡She took care of some offices; a considerable part of her work being the scrubbing of floors which she accomplished on her knees. The injury disqualified her for such service and disabled her to the extent that for the succeeding years she has not been able to pursue her calling. She has a husband who is an invalid whom she supported by her work outside and her housework. The presence of the hole in the street was admitted and it appeared without contradiction that the Burgess had notice that it had been there for several months. The position taken by the defendant at the trial was that Mrs. Boley was charge able with contributory negligence in that she failed to walk on tbe other side of the street as she customarily did which was concededly a safe way, and that having traveled the road for a long time, she is presumed to have known of the existence of the hole and to' be chargeable with the duty to avoid it. For this reason the defendant asked for binding instructions for the defendant and, after the verdict, for judgment non obstante veredicto, both of which requests were refused. This action of the court is made the subject of the first and second assignments. A careful examination of the evidence clearly shows that it would have been error to sustain either of these requests. The contributory negligence which will put the plaintiff out of court must clearly appear in the evidence in support of the action. If the evidence in the case be contradictory or inferences may be drawn favorable to the plaintiff neither nonsuit nor judgment non obstante veredicto is authorized. It was not the obligation of the plaintiff to affirmatively disprove negligence. If she made out a case of injury resulting from the defendant’s negligence without disclosing negligence on her own part,- she established her right to appeal to the jury. There is no warrant for holding that in going to her place of work she should have crossed the street to the other side as she usually did instead of remaining on the side nearest her home. Her reason for going on the other side was not because of the structure of the street, but related to her safety with reference to automobiles. All parts of the street were used by drivers of vehicles and by pedestrians and while it appeared that the street was not as smooth on the side where Mrs. Boley was hurt as the other, the roughness referred to had no relation to the safety of pedestrians or to the. defect which caused the plaintiff’s hurt. When she testified that the hole was not apparent to her because it was filled with snow at a time when the whole street was covered by snow, her statement could not be discredited by the court and disregarded in the entry of a judgment against her. The evidence was not unreasonable; it was corroborated by her daughter and not contradicted by anyone. It was growing dusk, the witness was late in getting to her work and was walking rapidly on what seemed to be a safe pathway. If her story is true, she is free from the imputation of negligence and the jury has certified to her credibility by the verdict.

It is further contended that the court erred in not granting a new trial for the reason that the verdict was against the evidence. As we have already seen there was no defense against the action except the alleged contributory negligence and that cannot be found in the testimony. It is also contended that the verdict was excessive. As Mrs. Boley received a serious injury from which she was suffering at the time the case was tried more than five years after the accident, it is not apparent that the jury was indulgent in her favor. The verdict for her husband was supported not only by evidence of her earning capacity, but by proof of wages received for several years before she was hurt. According to her testimony she was earning nearly $700 a year before the injury and the character and recompense of employment was shown without contradiction. The amount recovered by the husband was much less than his wife would have earned without taking consideration of loss of companionship and service as a housekeeper. There was competent evidence therefore to support the verdict.

The charge of the court is criticised because of the omission to direct the attention pf the jury to the necessity of estimating the present worth of future damages. If it be conceded that the subject was not properly presented to the jury by the court, the appellant has no ground for complaint for the jury evidently took no account of future disability. The verdict is a moderate allowance for the loss which the evidence showed the plaintiffs had sustained up to the date of the trial. It is of course only the compensation for injury to be sustained in the future which is to be capitalized and that feature of the case was evidently not taken into consideration by the jury.

The assignments are overruled and the judgment affirmed.