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SOLINSKY v. WILKES-BARRE (10/15/53)

October 15, 1953

SOLINSKY, APPELLANT,
v.
WILKES-BARRE



Appeals, Nos. 143 and 144, Jan. T., 1952, from judgments of Court of Common Pleas of Luzerne County, Jan. T., 1951, No. 602, in case of Genevieve Solinsky et vir. v. City of Wilkes-Barre. Judgments affirmed.

COUNSEL

Roy B. Pope, with him Ralph J. Johnston and Johnston & Pope, for appellants.

J. Thirwall Griffith, with him Howard E. Kennedy, for appellee.

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

Author: Stearne

[ 375 Pa. Page 88]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

Plaintiffs instituted this action of trespass for damages for injury to the wife-plaintiff, resulting from a fall on an unlighted portion of a street in defendant city at about 11:30 P.M. on December 24, 1948. The court below entered a compulsory non-suit which it refused to take off. Plaintiffs appealed.

Viewing the testimony, as we must, in a light most favorable to the plaintiffs, and giving them the benefit of every inference reasonably deducible therefrom, the controlling facts are as follows: plaintiffs resided on Reno Lane, which is one block in length and connects Dock Lane with Coal Street in Wilkes-Barre.

[ 375 Pa. Page 89]

It has a hard surface, is unpaved and has no sidewalks. The surface is about 15 feet in width, running from fence to fence of the homes fronting both sides of the street. It is used in its entirety by both vehicular and pedestrian traffic.

On December 19, 1948, there had been a reasonably heavy snowfall of five or six inches. There was no sequent fall of snow prior to midnight of December 24. Between the fall of snow on December 19 and the time of the accident the weather was "below freezing and above freezing." It "would thaw out during the day and freeze at night." Automobiles passing over the street made ruts and ridges of a depth of three to four inches, and at no time was any part of the street free of these ruts and ridges. Its surface was in the same condition on the 24th as it was on the 21st. There was no proof of attempts by the city to clear the street or to ash it. The wife-plaintiff, who had crossed the street twice previously on the same day, left her home at approximately 11:30 P.M. on December 24 and proceeded diagonally along the bed of the street reaching near the center thereof where she slipped on a ridge of ice, fell, and was injured thereby.

The negligence charged against the city was its failure to maintain the street in a safe condition, after it had constructive notice of the alleged dangerous condition of the street.

The suggested remedy of snow removal or spreading ashes is impracticable, if not impossible. To remove the snow from all the streets of a city the size of Wilkes-Barre, and within a few days after a normal snow fall, is obviously impossible. To place ashes or cinders over all the street of the city following a normal show fall would be futile. Ashes and cinders sink during a thaw. Ice formed at night after a thaw would be free from such ashes or cinders.

[ 375 Pa. Page 90]

A municipality is not liable for personal injuries sustained by an individual who falls because of a generally slippery condition of either a street or sidewalk, which occurs in all cities of Pennsylvania in winter due to the presence of ice and snow, accumulated as a result of natural causes. Strauch v. Scranton, 157 Pa. Superior Ct. 174, 42 A.2d 96, (affirmed per curiam in 353 Pa. 10, 44 A.2d 258) is peculiarly apposite. There a pedestrian was injured by a fall on an icy rut in an unpaved roadway. The ice was formed by natural surface drainage. The facts, which nearly parallel the present ones, were: "Moltke Avenue, a dirt road some distance from the foot of a mountain in an outlying section of Scranton, runs southwardly, upgrade, from its intersection with East Mountain Road. The latter is an improved highway. The natural surface drainage is from the east down the hillside through the lots of owners whose houses front on the east side of Moltke Avenue. The land to the west of the dirt road is unimproved and slopes down to a railroad. Surface water from the higher ground drains on to Moltke Avenue. In freezing weather the roadway, at times, was covered with ice. For about a week prior to plaintiff's injury the weather was mild, alternately freezing and thawing, with some rain. Automobiles passing over Moltke Avenue formed ruts in the ice then on the roadway. Plaintiff on the morning of January 1, 1943, walked northwardly in the roadway of Moltke Avenue and when a few feet from East Mountain Road slipped in an icy rut and fell. Although he lived in the neighborhood and used the road every day, he did not observe the hazard because of a fall of snow that morning which concealed the ruts in the ice. There were no sidewalks along Moltke Avenue and the roadway was commonly used by pedestrians as a footway. The city had actual as well as

[ 375 Pa. Page 91]

    constructive notice of the condition of Moltke Avenue under conditions then prevailing. The city had been requested to install a proper drainage system for the benefit of those living on Moltke Avenue but without result. The question here is whether the municipality, under the circumstances of this case, was required to provide a drainage system adequate to prevent the accumulation of ice along the street from surface water naturally flowing upon it from adjoining higher ground." (Italics supplied)

Judge HIRT, speaking for an unanimous court, said:

"A city is held to no higher duty than to keep its streets in a reasonably safe condition for use, considering the ordinary requirements of the general public (Megargee v. Philadelphia, 153 Pa. 340, 25 A. 1130) and climatic conditions which make it impossible for any city to keep its roadways free from ice at all times. McCracken v. Curwensville Boro., 309 Pa. 98, 163 A. 217. A slippery condition from an accumulation of ice which is general is not sufficient in itself to impose liability either on a property owner or on a city. Bailey v. Oil City, 305 Pa. 325, 157 A. 486. A city however may be responsible for injury resulting from an artificial accumulation of ice, as distinguished from that resulting from natural surface drainage. Thus a municipality has been held liable where a mass of ice due to its failure to repair a broken water main was permitted to remain after notice (Tripp v. Renovo Borough, 75 Pa. Superior Ct. 417); or because of a broken water hydrant (Decker v. Scranton City, 151 Pa. 241, 25 A. 36) or an obstructed drain (Manross v. Oil City, 178 Pa. 276, 35 A. 959) or where the source of the water was an open conduit or broken rain spout discharging from abutting property. Dean v. New Castle, 201 Pa. 51, 50 A. 310; Gross v. Pittsburgh, 243 Pa. 525, 90 A. 365; Duvall v. City of New Castle, 74 Pa. Superior Ct. 573;

[ 375 Pa. Page 92]

Julian v. Philadelphia, 147 Pa. Superior Ct. 323, 24 A.2d 69." ...


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