Appeals, Nos. 172 and 173, March T., 1951, from order of Court of Common Pleas of Allegheny County, April T., 1948, No. 3476, in case of Marie P. Carroll et vir, v. City of Pittsburgh and Pittsburgh Railways Company, etc. Order reversed.
Con F. McGregor, for Pittsburgh Railways Company, appellant.
Thomas E. Barton, Assistant City Solicitor, with him Anne X. Alpern, City Solicitor, for City of Pittsburgh, appellant.
James T. Philpott, with him Harry A. Estep, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
The jury in this trespass action having found a verdict for defendants, we are of opinion that the court below was not justified in granting, as it did, plaintiffs' motion for a new trial on the ground that the verdict was contrary to the evidence and that in the interest of justice a new trial should be had.
On the night of April 9, 1946 the wife-plaintiff, Marie P. Carroll, was a passenger on a trolley car on Federal Street operated by defendant Pittsburgh Railways Company. Federal Street is a main, much travelled, well lighted highway in the City of Pittsburgh. At Montgomery Avenue there was a regular carstop 10 feet back of the intersection and another one 45 feet to the rear, so that the cars customarily stopped within that 55 feet distance, as did the car in the present instance on which Mrs. Carroll was a passenger. She testified that she alighted from one of the front doors and in so doing her right foot became caught in a hole in the asphalt of the cartway, -- a hole which she described as being larger than a dinner plate, irregular in shape, and of a depth of about three inches; she said she had so much difficulty in extricating her foot that she required the assistance for that purpose of the street car operator and her daughter who was a passenger with her on the car and alighted immediately behind her. She was not certain, in her testimony, whether he foot went directly into the hold as she stepped from the car or whether she had first taken another step. She claimed that she suffered injuries as the result of the accident and she and her husband brought suit against both the Pittsburgh Railways
Company and the City of Pittsburgh to recover damages.She was corroborated in her testimony by her daughter. On the other hand, the motorman testified that several persons stepped from the car immediately before Mrs. Carroll and some after her; when she had taken about two steps from the car, she went down on her right knee; he left the car to help her but she had meantime gotten to her feet; he asked her if she was hurt and she told him she had turned her ankle, was not injured and did not wish to go to the hospital; she walked to the sidewalk with her daughter and went down Federal Street. He further testified that at the place where she fell there was nothing but a small frost crack in the asphalt paving about an inch wide and a half inch deep and running diagonally toward the curb for a distance of about four or five feet. A registered nurse employed by the Allegheny General Hospital who was sitting in the car directly behind the motorman and facing the point where Mrs. Carroll was alighting testified that she saw her fall after taking one or two steps, but she rose directly, said she was all right and walked away. Plaintiffs produced witnesses who testified that for some time previous to the accident there had been several holes in the street at that point, including one of them as described by Mrs. Carroll.
We consider first the liability of the Pittsburgh Railways Company. It appears that there were Belgian blocks bordering the outside of the rails of the Federal Street tracks; from there to the sidewalks the street was paved with asphalt. In their complaint plaintiffs alleged that the Railways Company was negligent in failing to maintain the street at the point of the accident in a reasonably safe condition and in permitting the hole to be and remain within its ...