Donovan v. Peoples Natural Gas Co. ( 1924 )

Argued April 28, 1924. The plaintiff was injured by a fall on the sidewalk near her home, at about half past nine in the evening, as she was going to the house of her next door neighbor. The cause of the injury was alleged to be a projecting gas pipe of the defendant company on which she stumbled and fell. The assignments of error only require us to consider whether there was evidence which made necessary the submission of the case to the jury. The testimony on behalf of the plaintiff is clear to the effect that the pipe in question projected above the level of the walk from three and one-half to four inches and was covered by a cap seven or eight inches in diameter. There is no contradiction of the evidence that the plaintiff was hurt by a fall. The contention of the defendant is, however, that if the occurrence was as shown by the plaintiff's evidence she could not have injured her right knee on the projecting pipe. The plaintiff testified that as she walked her left foot struck the pipe and caused her to stumble and fall in which movement her right knee struck the cap of the pipe. The argument of the appellant is based on the proposition that in the nature of things it was impossible that she could have struck the pipe with her left foot and as a result have so fallen as to injure her right knee in the manner described, and we are asked to hold that it is uncertain how the plaintiff was injured because it is evident as a physical fact that the result could not have been produced by a fall on the pipe if she was thrown down when her left foot came in contact with it. Whatever may be the operation of physical laws as related to inanimate objects, we think it clear that the manner in which a person may fall who strikes his foot against an obstruction is not a matter of common knowledge nor subject to the invariable operation of gravitation. The size of the person, the rapidity of movement, and the effort to maintain one's equilibrium, are factors likely to produce unexpected results. The discussion of the subject in the opinion of the learned trial judge refusing judgment for the defendant n.o.v. makes evident the difficulty of following the argument of the appellant to a legal conclusion. It is unnecessary to enlarge on that discussion. The case was necessarily one for the jury under the evidence.

The appeal is dismissed and the judgment affirmed.