Knepper v. Tamaqua Borough , 36 Pa. Super. 183 ( 1908 )

Opinion by

Orlady, J.,

On the trial of this case in the court below the defendant presented a request for instruction to the jury “That under all the evidence the verdict of the jury must be for the defendant," which was refused at the time of trial, and reserved for further consideration by the court; and subsequently a judgment was entered on the verdict. The facts in the case are not disputed. The plaintiff testified that she received her injuries while walking along a street with which she was perfectly familiar about half past eight at night, and as she describes it, “ I do not know what I slipped on. It was dark, the lamps were .out, but I did not slip on the crossing plate. Certainly I slipped, but I guess-there was ice there when I slipped, but I would not slip on the stones.” She knew there was a crossing plate at the point where she slipped, that the night was dark, and as she states, “my feet went from under me; one foot went out, and the other went under me.” She does not pretend to declare the immediate cause of her fall. After having slipped, her foot struck against a plate which extended above the level of the pavement, but which without her first slipping and falling against it, would have done her no injury. It was not the cause of the accident, independent of the question whether it was an obstruction to public travel, or whether the borough had constructive notice of its existence; and when asked as to whether she could have seen it if she had looked, she replied, “I guess I could if I had looked, if I had looked right sharp. I was not looking for such things. I was walking along, minding my business. I would not have known that that plate had been raised if Brachman did not tell me.” Under all the authorities it is clear, that the cause of her injury is not so definitely ascertained by the testimony as to make the borough liable.

The judgment is reversed.