Braden v. Pittsburgh , 143 Pa. Super. 427 ( 1940 )

Argued May 8, 1940. Near plaintiffs' home, the City of Pittsburgh had maintained a wooden stairway for pedestrians connecting the upper section of Irwin Avenue where the cartway ended at the top of a hill, with a continuation of the street from the lower level at the foot of the slope. The stairway had fallen into decay and during January 1935 was in the course of reconstruction by the city with the aid of Federal labor. The repair or renewal of the upper 2/3 of the stairway had been completed and the lower 45 feet had been removed to make way for the new structure when the appropriation for the project became exhausted and the work stopped. The workmen for their convenience had dug steps into the earth in the surface of the hillside from the lower end of the completed section of the wooden stairway to the foot of the hill. When the work was suspended, the city placed a wooden barricade across the entrance to the stairway at the top, bearing the warning "travel at your own risk." This barrier had been in place undisturbed for a period of about three weeks after the close of the work and until 4:30 of the afternoon of February 7, 1935, when, according to the testimony it was observed to have been removed. At 8:30 the following morning the minor plaintiff, seeing that the barricade was down, used the stairway as a short cut to her school. She had no great difficulty until she left the bottom of the completed structure and reached the earth steps cut into the hillside. These steps were uneven and irregular; they were covered with snow and underneath were "all ridged and rutted with ice." In stepping into a hole in one of them she was thrown forward and was precipitated to the bottom of the hill and was injured. This appeal followed the entry of judgments for the city, notwithstanding verdicts for the plaintiffs. Negligence of the city and contributory negligence of the minor plaintiff are the issues involved.

Since we agree with the lower court that the plaintiffs have not met the burden upon them of proving that the city was negligent, we may pass the question of the contributory negligence of the minor with this comment: The presumption that a child is incapable of negligence grows constantly weaker with increased age and upon approaching age fourteen reaches "that point in the diminishing scale when it was [is] almost a negligible quantity": Gress v. Phila. Reading Ry. Co., 228 Pa. 482,77 A. 810. The minor plaintiff in this case was thirteen years four months old. Even where a minor is under fourteen, on an uncontradicted showing of unusual capacity in clear cases, where there can be no reasonable doubt to be drawn from the facts, the court may declare the presumption rebutted as a matter of law. Parker v. St. Railway Co., 207 Pa. 438, 56 A. 1001. In the following cases recovery was denied: Nagle v. AlleghenyValley Railroad Co., 88 Pa. 35; Moore v. Pennsylvania R.R. Co.,99 Pa. 301; Shannon v. Philadelphia, 185 Pa. 347, 39 A. 1117;Gress v. Phila. Reading Ry. Co., supra. See exhaustive note in 107 A.L.R. 164-178. This minor's testimony indicates that she was well above the average in intelligence; she had stood third in her class on graduation from Junior High School. She was a normal child and had participated in winter sports to some extent. In common with all children in the latitude of Pittsburgh she was familiar with the qualities of snow and ice. The snow covered steps cut into the hillside were in full view from the foot of the wooden stairway and a test of the obvious danger of descending them undoubtedly would have barred an adult from recovery under like circumstances. Whether this plaintiff is chargeable with negligence as a matter of law is a debatable question at best. Gress v. Phila. Reading Ry.Co., supra.

As to the defendant's negligence: Since the building of this stairway was the city's project and was directly under its supervision and control no notice was necessary to impose the duty upon the city of properly guarding the stairway during the course of construction. Rowland v. Philadelphia, 202 Pa. 50,51 A. 589; 50 A.L.R. 1193. And when the work was suspended and the workmen had left, though the city was not obliged to station a watchman on the incompleted structure yet the same duty devolved upon it as upon a private owner or contractor under like circumstances, of placing proper guards or barricades across the entrance to the stairway, closing the structure to public use.Thubron v. Dravo C. Co., 238 Pa. 443, 86 A. 292. Maintaining a barrier of proper construction will relieve a city from liability for the injury of one ignoring the warning (Jessup v. Sloneker,142 Pa. 527, 21 A. 988) and it is conceded, as it must be, that the barricade erected by the city in this case with the warning "travel at your own risk" was sufficient for the purpose during the time it was in place. The testimony is that this barrier was removed by someone without the actual knowledge or consent of the city. The general rule is that when a dangerous condition has been created and precautions have been taken adequately to safeguard the public from the dangers arising therefrom, no liability will be incurred for an injury resulting from the removal of such safeguard by a third person. 62 A.L.R. 500; 200 L.R.A. (N.S.) 723. The circumstances of the removal of the barrier in this case do not appear and there is no evidence of the time of its removal before 4:30 in the afternoon of February 7, 1935.

Since the unauthorized removal of a barrier in itself imposes no liability, if the city is chargeable with negligence in this case, it must be because of its failure to replace the safeguard within a reasonable time after constructive notice of the fact that the barrier had been taken away. The controlling question resolves itself into the inquiry whether the city had constructive notice that the stairway was unguarded. On this question the authorities having to do with rights and liabilities where the dangerous condition is in a highway caused by wear and tear or by alternate thawing and freezing, do not apply; in that class of cases a somewhat longer period of time is required to charge a municipality with notice of the danger. As to a sidewalk in the course of repair, a much shorter period will charge the owner of land and a private contractor with constructive notice of the removal of safeguards during the progress of the work(Beck v. Hood, 185 Pa. 32, 39 A. 842) than is required to impose liability upon a large municipality. Mills v. Philadelphia,187 Pa. 287, 40 A. 821; McLaughlin v. Kelly, 230 Pa. 251, 79 A. 552. Manifestly no definite interval of time, applicable to all cases, can be said to be sufficient to charge a municipality with notice of a dangerous condition in a project undertaken by the city and directly under its control and therefore the question because of varying circumstances is usually for the jury, though in a clear case it may be one of law.

We are of the opinion that this is a clear case and that on the undisputed facts the interval was too short to charge the city with constructive notice. True, the barrier was down for 16 hours but of that period between 4:30 P.M. onFebruary 7, 1935 and 8:3O the following morning, the time of theaccident, there was something less than a total of three hours ofdaylight. The law charges a city with notice of a defect only if it has existed a sufficient length of time to be observed by its officers exercising reasonable supervision. McLaughlin v. Kelly, supra. After placing a safeguard sufficient for the purpose the city's duty was one of inspection, to see that it was in place, but the city was bound to inspect only at reasonably frequent intervals. The city's failure to anticipate that the safeguard might be removed was not negligence in itself, in the absence of circumstances indicating the probability that it would be removed. 62 A.L.R. 504; Doherty v. Inhabitants of Waltham, 4 Gray 596; Canfield v. City of Newport, 73 S.W. 788 (Ky.).

The probable danger and the element of risk to a pedestrian involved in descending the hill have some bearing upon the degree of care required of the city and the frequency of inspection required to see to it that the barrier was in place. The hill for the lower 45 feet, into which the earth steps were cut, was only moderately steep; in that distance the perpendicular drop was less than 10 feet. There were thirteen steps with risers of no more than 9 inches. The treads of these improvised steps were at least 3 feet long and were usable by pedestrians without danger of injury except when wet or slippery from an accumulation of ice and snow. The stairway was not attractive to children except as used by the minor plaintiff as a short cut to school. The danger therefore was not immediate as in the case of the failure to safeguard an open ditch in a sidewalk. The case, also, is not comparable in the degree of care required, with one involving a repair of a known dangerous defect in the cartway of a highway open to traffic. Here, the stairway had been closed for several weeks with a barrier marked "travel at your own risk." It was entirely outside of the traveled portion of any highway. From the inferences from the testimony most favorable to plaintiffs we are unable to say that sixteen hours with fewer than three hours of daylight was sufficient under the circumstances to charge the city with constructive notice of the danger. If this conclusion is valid, as we believe it to be, there is legal excuse for the city's failure to replace the barrier in the interval.

Judgments affirmed.