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HUTCHISON v. MONTGOMERY WARD AND COMPANY ET AL. (01/16/50)

January 16, 1950

HUTCHISON, APPELLANT,
v.
MONTGOMERY WARD AND COMPANY ET AL.



Appeal, No. 102, March T., 1949, from judgment of Court of Common Pleas of Butler County, March T., 1947, No. 68 and June T., 1947, No. 97, in case of Alice Hutchison v. Montgomery Ward and Company et al. Judgment affirmed; reargument refused February 7, 1950.

COUNSEL

J. Campbell Brandon, with him W. D. Brandon, Hugh S. Millar and Brandon & Brandon, for appellant.

Lee C. McCandless, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Patterson

[ 364 Pa. Page 127]

OPINION BY MR. JUSTICE PATTERSON

This was a trespass action for personal injuries instituted by Alice Hutchison, appellant, against Montgomery Ward & Company, appellee, and Cote Realty Company, occupier and owner, respectively, of a building on Main Street, in the City of Butler, Pennsylvania. Cote Realty Company was relieved of liability by a directed verdict and the jury found in favor of Mrs. Hutchison in the amount of $3,000. The court below entered judgment non obstante veredicto for Montgomery Ward & Company, after argument, and Mrs. Hutchison has appealed.

About 2:00 P.M. on December 29, 1945, during a thawing temperature, snow and ice, perhaps a bushel in quantity, fell upon appellant from the roof of the building occupied by appellee, as she was walking on the abutting public sidewalk. The mass that fell contained lumps of snow and ice three or four inches wide and four or five inches long, and was described as having "a

[ 364 Pa. Page 128]

    dark color", as "blackish", "sort of blackish", and "dirty". A witness, without objection, said, "it wasn't fresh; it had been colored with soot", and another witness testified, "It was just like snow and ice that has accumulated at some place and later [thawed] out and where a smoke had colored it." The building has a frontage of 100 feet on Main Street and is over 40 feet high, with a mansard type roof, constructed on a grade of about 60 degrees and measuring twelve feet, eight inches from ledge to ridge pole. The ledge is thirteen inches in width and contains a gutter six inches wide and eight inches deep. There had been a heavy snowfall of sixteen and one-half inches on December 24, which was reduced to three inches by December 27, on which date an inch of snow fell, with the temperature ranging from 28 to 32 degrees. On Friday, December 29, the day of the accident, the snow and ice were thawing in a temperature ranging from 36 to 42 degrees.

No complaint is made that the court erred in directing a verdict for the owner, Cote Realty Company. The sole question is whether it was error to enter judgment for appellee notwithstanding the verdict in favor of appellant. On this question, the opinion of the court below states: "Considering the evidence that the snow had melted away to the extent of at least four inches, we are of the opinion that there was no extraordinary condition prevailing at the time of the accident and prior thereto which would cause the [appellee], as an ordinary, careful, prudent person, to believe that snow and ice was likely to come out over the gutter and the coping and fall to the street... Clearly there was no actual notice of any negligent condition existing upon the roof... Taking into consideration that there is no evidence of any previous falling of snow and ice from the roof; that the heavy snowfall had been reduced to one-fourth of its original size; and that a proper and standard constructed gutter and coping existed immediately adjacent

[ 364 Pa. Page 129]

    to the street; we do not believe that under such circumstances the [appellee] could be visited with any constructive notice of a negligent condition existing upon the roof. Although the accident was most unfortunate, there was no absolute liability upon the [appellee] company, and we can come to no other conclusion than that the [appellant] has failed to meet the burden of proof imposed upon her."

Appellant may not recover by merely showing that she was injured. There must be evidence to support a finding of a breach of the occupier's duty to a user of the sidewalk. Compare Pope v. Reading Company, 304 Pa. 326, 331, 156 A. 106; Beebe et al. v. Philadelphia, 312 Pa. 214, 167 A. 570; Beck v. Germantown Cricket Club, 228 Pa. 173, 77 A. 448; Vendig v. Union League of Philadelphia, 291 Pa. 536, 140 A. 503. The evidence does not support the contention that it was a mass of ice and snow permitted by appellee to collect in the gutter or on the ledge of the building which fell and injured appellant. On the contrary, her own evidence establishes that it was a part of the normal accumulation on the roof itself that fell, covering an area of about two square feet. Any hazard created by the extraordinary snowfall on December 24 had been eliminated by melting. The depth of the snow had been reduced to three inches and there was an additional inch of snowfall on December 27, making a total of only four inches of snow on the roof on December 29, the date of the accident. The building was of a common and approved type of construction and was in good repair. It was equipped with metal snowguards or ice-breakers, spaced eighteen inches apart, and with a thirteen-inch wide ledge at the lower edge of the roof containing a box-type gutter six inches wide and eight inches deep, as precautions against falling ice and snow. There is no testimony that snow or ice had fallen from this roof on any prior occasion and no evidence that the accumulation on the roof was of an

[ 364 Pa. Page 130]

    unusual nature, differing in any way from that existing on other roofs throughout the community in general, or that the prevailing weather conditions were abnormal, considering the season of the year, to indicate a necessity for additional precautions on this particular occasion.

To permit a recovery under these circumstances would be to hold that the owner or occupier of a property must prevent falling ice and snow at his peril. No Pennsylvania case has been cited, however, to support such a proposition. Our law imposes no absolute duty on an owner or occupier of property to keep his premises free from ice and snow at all times: Whitton v. H.A. Gable Company, 331 Pa. 429, 431, 200 A. 644. The question is not one of safety but of negligence: Ross et al. v. Pennsylvania Railroad Company, 355 Pa. 119, 121, 49 A.2d 370. As recognized by this Court in Rickey v. Armour, 293 Pa. 127, 129, 141 A. 841, "Gutters along the edges of eaves will clog up from ice and snow and overflow under certain weather conditions. This is inherent in the nature of eaves and gutters, just as it is in roofs without them, and their maintenance could not ordinarily be held negligent." To charge the owner or occupier with culpability in such a case it must not only appear that the condition existed for so long a time as to visit him with knowledge of it, but must also appear that the danger was sufficiently obvious that he should have realized that someone might be injured because of it: Restatement, Torts, section 364. Clearly the mere fact that snow or ice fell from the roof is not of itself sufficient proof of negligence. It was incumbent on appellant to show some unusual condition existing before the accident that would lead appellee, through its employees, in the exercise of reasonable and ordinary care, to believe that additional precautions were required. See Pieckowicz v. Oliver Iron & Steel Company et al., 351 Pa. 209, 212-213, 40 A.2d 416.

[ 364 Pa. Page 131]

The present case is to be distinguished from cases like Reedy v. Pittsburgh, 363 Pa. 365, 69 A.2d 93, where the pedestrian was injured by ice on the sidewalk which formed as a result of antecedent negligence in permitting the premises to become defective. Here, the presence of snow on the roof of the building occupied by appellee was not caused by any act or omission on its part, but was a natural phenomenon incident to our climate. Also distinguishable are Klepper v. Seymour House Corporation, 246 N.Y. 85, 158 N.E. 29, 62 ALR 955, and similar cases, relied upon by appellant, where the building was so constructed as inevitably to collect snow and ice and discharge it into the street, or where it appeared from the evidence that snow-slides from the roof during the winter months occurred with such frequency as to charge the owner or occupier with notice of the dangerous condition.

Judgment affirmed.

Per Curiam

The foregoing opinion was prepared by the late Justice PATTERSON. It was adopted by a vote of the Court before his death. It is now filed as the opinion of the Court.

Disposition

Judgment ...


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