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MILLER v. EXETER BOROUGH (01/02/51)

January 2, 1951

MILLER, APPELLANT,
v.
EXETER BOROUGH



Appeal, No. 220, Jan. T., 1950, from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1948, No. 318, in case of Joseph Miller v. Borough of Exeter et al. Judgment affirmed.

COUNSEL

Phillip M. Gorgold, with him Albert W. Brobst, for appellant.

Albert B. Carrozza and John R. Reap, Jr., with them Reap & Reap, for appellees.

Before Drew, C.j., Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Chidsey

[ 366 Pa. Page 337]

OPINION BY MR. JUSTICE CHIDSEY

Joseph Miller, appellant, instituted this action in trespass against the Borough of Exeter to recover damages for injuries sustained as a result of a fall allegedly caused by the existence of a ridge of ice leading from a defective drainpipe across the sidewalk of Schooley Street on the premises of James C. Walsh.

[ 366 Pa. Page 338]

Walsh was made an additional defendant. After a trial before a jury, a verdict was rendered in favor of defendants. Plaintiff filed his motion for new trial assigning alleged errors in the charge of the trial judge and rulings with regard to the admission of certain evidence. This appeal is from the dismissal of said motion and the entry of judgment on the verdict.

Plaintiff, on January 20, 1948, after 7:30 p.m., was walking along Schooley Street in the Borough of Exeter. He testified that as he approached the corner of Wyoming Avenue he tripped and fell over a ridge of ice which had accumulated by reason of a defective drainpipe running from the roof of the Walsh premises to Schooley Street. Evidence was adduced which would have warranted a finding by the jury that this condition had existed without being remedied for a sufficient length of time to impose liability with regard thereto on both the Borough and Walsh for injury resulting therefrom.

Defendants adduced evidence that the condition complained of did not in fact exist at the place where the plaintiff sustained his injuries and that the cause of the fall was the intoxication of the plaintiff. The jury by its verdict has determined the facts adversely to appellant.

Plaintiff contends that the trial judge erred in charging the jury as follows: "The mere happening of an accident is no proof of negligence on the part of either defendant and in order that the plaintiff may recover he must show the fall and injuries resulted from the negligent conduct of one or both of the defendants. That hurden he must meet by the fair weight of the credible testimony in the case..." It is said that this portion of the charge led the jury ...


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