DocketNumber: Appeal, No. 205
Citation Numbers: 197 Pa. Super. 1
Judges: Ervin, Flood, Montgomery, Rhodes, Smart, Watkins, Woodside, Wright
Filed Date: 12/14/1961
Status: Precedential
Modified Date: 2/18/2022
Opinion by
The defendant has appealed from the court’s réfusal of its motion for judgment n.o.v. following a verdict for the plaintiffs in a suit arising out of a fall upon the crosswalk of an alley in the City of Pittsburgh. The wife-plaintiff testified that she fell when her foot went into a hole about two feet long, six inches wide and three to four inches deep. No question of contributory negligence is raised on this appeal. Mrs. Martin suffered a broken ankle and was taken to the hospital. The hospital record states: “Chief Complaints: Fell on the ice and hurt her right knee and ankle.”
The defendant’s motion is based upon three grounds (1) that testimony as to the general condition of the street only, but not as to the existence of the particular defect prior to the accident, does not establish constructive notice to the city; (2) that the plaintiffs’ evidence
1. As to notice, Mrs. Martin testified that the condition of the street at the place where she fell was bad, that it was bad before she fell, that it has “been bad all along”. She had lived in the area “I guess about seven or eight years”. On cross-examination, she testified that “it was there all the time and a lot more”.
Her witness, Jean Taylor, said that “in terms of weeks or days” the condition of the street at that place “was very bad and had holes in the street”. She had seen that particular hole, into which the plaintiff fell, before.
James Taylor, testified that the plaintiff’s foot was in the hole when he picked her up after the fall, that the roadway had a lot of holes in it, and that this condition had been there for “a good while”.
The city’s argument is that, in the absence of actual notice to it of the defect, it must appear how long the particular hole into which plaintiff fell had existed. The defendant relies on Hulings v. Pittsburgh, 150 Pa. Superior Ct. 338, 28 A. 2d 359 (1942), in which we held that there was not sufficient evidence that the city’s negligence caused the plaintiff’s injury. The testimony there was that there were ridges of ice on the pavement, and Mrs. Hulings’ feet slipped on the ice, but she did not identify any particular ridge of ice which caused her to fall nor say that a ridge caused her fall. We do not have such a situation here. The plaintiff and her witnesses identified the particular hole into which her foot went as the cause of her fall.
2. The remaining contention of the defendant is that, assuming its negligence in allowing the hole to remain in the street, this negligence did not cause the accident. This argument falls into two parts, which constitute the second and third grounds of appeal stated by the defendant: (1) the plaintiff presented two theories of liability on only one of which the city would be liable; and (2) the medical testimony is consistent only with a theory upon which the defendant is not liable. Both parts of this argument are based upon the statement in the hospital report that the wife-plaintiff “fell on the ice” and her doctor’s testimony that the history “as given to us at that time was that the patient •slipped on the ice . . . after she had stepped off a curb and fell to the street . . .”
Here the plaintiff’s testimony is that she fell when her foot went into the hole. If there was snow in the hole and the snow made the bottom of the hole slippery, the city’s negligence in allowing the hole to remain unrepaired is not necessarily superseded as a cause of her injury by the recent snow that caused the depressed surface to be slippery. If the negligence of the city is a concurrent cause of her injury, it is liable to her. 19 McQuillin, Municipal Corporations (3rd Edition 1950), §54.154. This was for the jury under the testimony.
Judgment affirmed.