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January 19, 1954



Charles Lowenthal, Philadelphia, for appellant.

William M. Keenan, Pepper, Bodine, Stokes & Hamilton, Philadelphia, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Wright

[ 174 Pa. Super. Page 557]

WRIGHT, Judge.

Roumania O. Riegel has appealed from the refusal of the lower court to grant a new trial after verdicts in favor of Laura M. Yost and Clarence M. Yost, husband and wife, in a trespass action against the City of Philadelphia, in which action appellant was joined as an additional defendant. Appellees moved to quash the appeal on the ground that the only judgment entered in their favor was against the city, as original defendant, whereas the appeal was taken by the additional defendant. Our decision on the merits makes it unnecessary to rule on this motion.

On November 10, 1950, at 7:30 p. m., Laura M. Yost fell in a hole in the concrete sidewalk on the west side of Sydenham Street. This hole was in front of the property of Roumania O. Riegel, and was the result of the removal of a tree some eleven years prior to the accident. The hole was approximately two feet square and from one and one-half to three inches in depth. Mrs. Yost testified that she had lived diagonally across the street from the scene of the accident for over 18 years. On the evening of the accident she left her residence in company with a daughter. She crossed Sydenham Street from the east to the west side where the family car was parked facing south. She walked around the front of the car, then around a utility pole, and stepped into the hole. As a consequence of the fall, Mrs. Yost suffered a transcervical fracture of the left hip and a Smith's fracture of the left wrist. It was dark at the time of the accident. The nearest street light was at the intersection of Sydenham Street and Erie Avenue, 100 feet north. This light was obscured by intervening trees and parked automobiles. Mrs. Yost testified that she had never seen the tree, nor the hole that remained after its removal. Her explanation was that she never used the west side of

[ 174 Pa. Super. Page 558]

    the street. The lower court submitted to the jury the questions of appellant's negligence and Mrs. Yost's contributory negligence. The jury returned verdicts in favor of the Yosts as against the city, and verdicts in identical amounts for the city against appellant as additional defendant.

Appellant contends (1) 'that plaintiffs' own photographic exhibit and testimony was positive evidence that plaintiffs knew or should have known of the alleged dangerous condition'; and (2) that there was insufficient evidence upon which to base the jury's finding that the medical and other expenses were reasonable and proper. Her first position is that 'the court cannot accept as true that which the indisputable evidence demonstrates is false'. However, appellant is relying, not upon an incontrovertible physical fact, but merely upon her theory that 'it is inconceivable that both plaintiffs and their two daughters never saw the original tree or the hole that remained after the tree was removed'. The actual fact necessarily implied from the verdicts is that plaintiffs were not aware of the hole. Where there is credible evidence from which a reasonable conclusion can be drawn in support of the claim of either party, the question must be left to the jury. Hayes v. Axelrod, 332 Pa. 518, 3 A.2d 346. The testimony of plaintiffs and their witnesses was clear and unequivocal. Knowledge of the hole did not necessarily follow from their residence in the vicinity. Upperman v. Ford City Borough, 289 Pa. 197, 137 A. 185; Heinz v. City of Pittsburgh, 137 Pa. Super. 603, 10 A.2d 100.

Appellant argues that, since a photograph taken from plaintiffs' side of the street showed the existence of the hole, plaintiffs must have seen it, citing Brett v. Philadelphia Transportation Co., 154 Pa. Super. 429, 36 A.2d 230, and Lessig v. Reading Transit

[ 174 Pa. Super. Page 559]

& Light Co., 270 Pa. 299, 113 A. 381. These cases are not controlling. Each involved a collision between an automobile and a street car, and the resulting damage clearly contradicted plaintiff's version of the accident. In Hazlett v. Director Gen. of R. R., 274 Pa. 433, 118 A. 367, also cited, the uncontradicted evidence offered by plaintiff showed that deceased did not stop before crossing a railroad track. The incontrovertible physical facts rule does not apply where the ...

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