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MCDONALD v. MARS BOROUGH (11/18/52)

November 18, 1952

MCDONALD, APPELLANT,
v.
MARS BOROUGH



Appeals, Nos. 91 and 92, March T., 1950, from judgment of Court of Common Pleas of Butler County, Dec. T., 1946, No. 32, in case of Josephine M. McDonald et vir. v. Borough of Mars. Judgment affirmed.

COUNSEL

John N. Gazetos, with him Armand R. Cingolani, for appellants.

John L. Wilson, for appellee.

Before Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 371 Pa. Page 626]

OPINION BY MR. JUSTICE JONES

The plaintiff sued to recover damages from the defendant borough for injuries she received in a fall due to an alleged negligent condition of a sidewalk along a public street of the borough. At trial, the defendant moved for a compulsory non-suit on the grounds (1) that the plaintiff had failed to establish negligence on the part of the defendant as the proximate cause of her injury and (2) that the plaintiff was guilty of contributory negligence as a matter of law. The motion was denied. The defendant rested without offering evidence but submitted a point for binding instructions which the court refused. The jury

[ 371 Pa. Page 627]

    returned a verdict for the plaintiff. The defendant filed motions for a new trial and for judgment n.o.v. The court granted the latter on the ground that the plaintiff was guilty of contributory negligence as a matter of law. From the judgment entered for the defendant, the plaintiff took this appeal.

The accident occurred between 9 and 10 o'clock on a morning in February while the plaintiff and a woman companion were walking, arm in arm, on a sidewalk along Grand Avenue in the Borough of Mars. At the point of accident there were two metal trap doors which extended out into the sidewalk from the adjacent building. The doors, when closed as they were at the time, formed a part of the sidewalk. The act of negligence alleged was the existence of breaks and a subsidence in the cement pavement immediately adjoining the metal doors which produced a difference of approximately one and one-half to two inches between the level of the doors and the level of the surrounding pavement. This condition had existed for a considerable period of time and had long been known to both the plaintiff and the defendant. The weather was dry at the time of the accident, but there had been some snow earlier which, having melted, left the metal doors wet or damp. The plaintiff, with her right foot on the subsided portion of the pavement at an outside corner of one of the metal doors, placed her left foot on the door. As she did so, the foot (i.e., her left) slipped out from under her and she fell to the ground, receiving the injury for which she sued.

Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff as the jury's verdict requires, the plaintiff's contributory negligence as a matter of law stands out so patently as to leave little room for discussion. It clearly appears in the plaintiff's case that the defective

[ 371 Pa. Page 628]

    condition of the sidewalk had long been known to her and that its presence was readily discernible in the daylight. In Leson v. Pittsburgh, 353 Pa. 207, 210, 44 A.2d 577, we quoted and applied the pertinent rule, as then lately recognized in Cox v. Scarazzo, 353 Pa. 15, 17, 44 A.2d 294, that "One who, in broad daylight, walks into an obvious defect in a sidewalk is presumptively negligent. '* * * the burden rests upon the party complaining to show conditions outside of himself which prevented him seeing the defect, or which would excuse his failure to observe it': Lerner v. City of Philadelphia, 221 Pa. 294, 296." See also Petruski v. Duquesne City, 152 Pa. Superior Ct. 393, 395-396, 33 A.2d 436, and Walker v. Stern, 132 Pa. Superior Ct. 343, 346, 200 A. 897, where the foregoing rule was applied in affirming judgments n.o.v. for ...


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