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SHIELDS v. LARRY CONSTRUCTION COMPANY (05/29/52)

May 29, 1952

SHIELDS
v.
LARRY CONSTRUCTION COMPANY, INC., APPELLANT



Appeal, No. 125, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, April T., 1948, No. 1949, in case of Lawrence A. Shields v. Larry Construction Company, Inc. Judgment reduced to $20,000, and, as reduced, affirmed.

COUNSEL

Arthur Grossman, for appellant.

John E. Evans, Jr., with him M. E. Evashwick and Evans, Ivory & Evans, for appellee.

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

Author: Chidsey

[ 370 Pa. Page 583]

OPINION BY MR. JUSTICE CHIDSEY

The plaintiff, Lawrence A. Shields, instituted an action in trespass against Larry Construction Company,

[ 370 Pa. Page 584]

Inc. to recover damages for personal injuries sustained when he fell into a hole allegedly created and negligently left unguarded by the defendant on a street pathway used by the public. The jury found a verdict for plaintiff in the sum of $35,000. Defendant appeals from the judgment entered on the verdict following dismissal of its motion for new trial.

The accident occurred at 3 a.m. on Sunday, July 13, 1947, at or near the southwest corner of the intersection of Greensburg Pike and Tintsman Avenue in Turtle Creek, Allegheny County. Greensburg Pike runs north and south and Tintsman Avenue east and west. There was no sidewalk along the southerly side of the latter but a pathway that was used by the public. Near the corner and beside the pathway was a catch basin owned by the County of Allegheny which had existed for over twenty years. On July 11th, the Friday before the accident, the defendant construction company pursuant to its contract with the county covering various repairs and alterations along Greensburg Pike, dug a ditch across Tintsman Avenue and installed a 16-inch sewer pipe running two feet under the surface and leading to the old catch basin. Plaintiff, who lived on the avenue about two blocks west of the pike, left a party of friends at a firehouse in the community to return to his home. He walked northwardly on the pike to the avenue and started to proceed westward on the pathway when, according to his testimony, he fell into a hole about four feet wide and four feet deep that adjoined the northern end of the catch basin. He testified that he crawled from the hole into the catch basin. About a half hour later two neighbors passing by heard him call and one of them helped him out of the basin. He suffered injuries and was taken to the hospital.

Plaintiff testified there was no street light at the intersection; that he saw a pile of dirt on each side of

[ 370 Pa. Page 585]

    the avenue near the pike; that there was a smudge pot or flare on the far pile but none on the pile on the south side of the street which was about five or six feet from the catch basin and cast a shadow to the south on the pathway where the hole was located. There were no barricades or warning signs and the hole was uncovered.

Appellant's contentions are: (1) that the lower court abused its discretion in not holding that a verdict favorable to the plaintiff was against the weight of the evidence; (2) that the trial judge erred in admitting into evidence the testimony of a physician given at a previous trial of the case; (3) that the trial judge in his charge to the jury made an improper comment with respect to the closing address of defendant's counsel, and (4) that the verdict was excessive.

(1) At the trial defendant contended that plaintiff fell into the catch basin of which he had knowledge, and that no hole existed as testified to by him. A number of witnesses were called by defendant in support of this latter contention, including the president of the defendant corporation, the foreman on the job and a construction engineer employed by the County of Allegheny. On the other hand five witnesses were called by the plaintiff, including his wife and brother-in-law, who corroborated his story as to the existence of the hole. Thus there was testimony on the part of a number of witnesses on each side on a main issue in the case, and the credence given to one or the other set of witnesses was largely determinative of the truthfulness of the plaintiff's account of the accident. The credibility of the witnesses and resolution of the conflict in their testimony was for the jury. In the ...


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