Kaczynski v. Pittsburgh

Argued October 7, 1932. In this action of trespass for negligence, plaintiff recovered a verdict; the court below entered judgment for defendant non obstante veredicto, and plaintiff appeals. The judgment is right.

The facts are these: On a foggy night, plaintiff, while walking down a flight of steps, built and maintained by the city for passage from one of its upper streets to another on a lower level, stepped into a hole on a landing forming part of the flight. The hole was caused by the removal of a nine- or ten-inch plank; she admitted she had known of its absence for approximately three weeks, that she could have taken a safer route, which she generally used at night, instead of one so obviously dangerous for travel in darkness, and that "the difference in walking time between those two routes," was "not much." She gave no excuse for her failure to avoid the known danger, and we can only say to her, as we have so often said in the past, that, "Where a person, having a choice of two ways, one of which is perfectly safe, and the other of which [she knows] is subject to risks and dangers, voluntarily chooses the latter and is injured, such person is guilty of contributory negligence and cannot recover:" Levitt v. B/G Sandwich Shops, Inc., 294 Pa. 291, 294. See also Purcell v. Riebe, 227 Pa. 503; McManamon v. Hanover Twp., 232 Pa. 439, and Smith v. Shamokin Boro., 268 Pa. 170.

The judgment of the court below is affirmed.