Burns v. City of Bradford

Opinion,

Mr. Justice McCollum:

On “a bright and starlight evening” in March, 1883, Maria Burns, the appellee, slipped and fell on a plank sidewalk on Pearl street in the city of Bradford, and on the second of February, 1885, brought this action, in which she alleges that her fall was caused by a defect in the walk and claims compensation from the city for the injury she received in consequence of it. The controlling questions in the case are whether her negligence contributed to the injury, and whether the city had notice of the alleged defect in the walk.

The walk was four feet wide, and there was no structural defect in it. Its material was substantial and sound; the stringers were of the proper size and well laid, and the planks were securely nailed to them. It is charged in her declaration “ that a portion of said sidewalk was covered with snow and ice, and one side thereof was several inches higher than the' other.” As there was no evidence of any accumulation of snow and ice upon it, that part of the charge is eliminated from the case. The appellee testified that at the point where she fell, the walk on the side next to the fence was a foot higher than on the side next to the road, so that it descended towards the road in the degree of one foot to four. If her description of the walk was correct, it is evident that the stringers on the side next to the fence had been raised a foot by the action of the frost, while the stringers on the opposite side remained in place. But, in her description of the condition of the walk at the time of the accident, she was not sustained by a single witness in the cause. The persons who came to her aid when she fell and who were called to testify in her behalf, did not observe any defect in the walk, or hear any complaint from her, or others present, respecting it. A Mrs. Fitzpatrick, however, testified that between two and three weeks previous to the accident, she had fallen on a walk on Pearl street, which was then in exactly the same condition as the walk described by the appellee; that she had not seen the walk since, but from information she had received from the latter she knew that they fell on .the same walk and at the same place.

It is obvious that a walk, in such a condition as testified to by these witnesses, was dangerous, especially so when it was wet, or when there was any snow or ice upon it. No person could pass over it without discovering its condition, and any person who had notice of that, and received an injury in attempting to go over it, when he might have passed safely on the level space between the walk and the ditch, would be held guilty of contributory negligence: Erie City v. Magill, 101 Pa. 616. The appellee had been over this walk half an hour before she fell upon it, and twice within a day or two previous to that time, and she testified that she never noticed any defect in it until after her fall. The only person who described the condition of the walk as dangerous, at any time previous to that, was Mrs. Fitzpatrick. It is admitted that the city had no actual notice of any defect in it, but it is claimed that this evidence is sufficient to charge it with constructive notice that the walk was out of repair and unsafe. A municipal corporation is not an insurer against all defects in its highways, but it is answerable for negligence in the performance of its duties in the construction and care of them. For a defect arising in them, without its fault or neglect, it is not liable, unless it has express notice, or the defect be so notorious as to be evident to all passers. If a defect is such that it is discovered by only one of a thousand or more persons who pass it in the ordinary pursuit of business or pleasure, can it be said to be notorious, or such a defect as the municipality is botind to take notice of ? We think not.

It is a fact well known to the inhabitants of all our municipalities that the sidewalks, whether of plank or stone, are liable in the winter to be thrown out of level by the action of the frost, and in the spring, when the frost is out of the ground, to settle to their' former positions. It is not necessary or practicable that for every slight deviation of the walks from their original level the}' should be taken up or relaid while the ground is frozen, nor would the comfort and safety of pedestrians be promoted by such action. Aside from the evidence of Mrs. Fitzpatrick, there is nothing in the ease to show that the walk was unsafe or out of repair, prior to the appellee’s fall upon it. If the condition described by Mrs. Fitzpatrick once existed, there is no room, in the presence of the testimony of the appellee and all the other witnesses in the cause, for a presumption that it continued. We think the evidence is insufficient to charge the city with notice of any defect in the sidewalk in question, and we sustain the fourth specification of error.

The judgment is reversed.