Nicholson v. Philadelphia , 194 Pa. 460 ( 1900 )

Per Curiam,

The negligence of the officials of the city whose duty it was to keep the pavement in repair, in not heeding the frequent reports of the police officers as to the condition of the pavement in question, was so manifest that the verdict of the jury was inevitable on that subject. On the question of the plaintiff’s contributory negligence the case was for the jury, and it was carefully committed to them by the learned trial judge, and found in favor of the plaintiff.

Upon an examination of the testimony we cannot say that there was error in leaving this question to the jury on the ground that the contributory negligence of the plaintiff was so apparent that the court was bound to treat it as a question of law. The pavement was out of repair, but there was no open hole in it or in the ground underneath the bricks. Nor were the bricks absent; they were loose owing to the crumbling of the mortar which held them together, but they were there, and many of them in place.- Some were displaced and some were broken. It does not necessarily follow that injury will result from treading on such a pavement. The fact that this condition of the pavement had continued for a number of weeks without' any reported accident having occurred, when it must have been trodden by great numbers of persons, is strong proof that it was not necessarily dangerous. It is also testified by the officers who reported its condition that its real condition was not apparent to a pedestrian until it was reached, that is, it looked like ordinary pavement to one approaching until he was about to tread upon it. It was also in evidence that the plaintiff was incumbered with various articles in her hands and arms at the moment of the accident, being engaged in moving from her former residence to another. In these circumstances she could scarcely be expected to keep up so careful a lookout for defects in. the pavement as an ordinary foot passenger entirely unincumbered. In view of these special facts in the situation it was the duty of the court to leave the question of contributory negligence to the jury. These views dispose of the fourth assignment of error, and we do not think there .is any merit in the other assignments.

Judgment affirmed.