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FREUND v. HYMAN (03/24/54)

March 24, 1954

FREUND, APPELLANT,
v.
HYMAN



Appeal, No. 194, Jan. T., 1953, from order of Court of Common Pleas of Lancaster County, April T., 1952, No. 9, in case of Else Freund v. William L. Hyman and the Borough of Ephrata. Order affirmed.

COUNSEL

K. L. Shirk, Sr., with him Shirk & Shirk, for appellant.

John L. Hamaker, with him F. Lyman Windolph, Ralph M. Barley and Paul A. Mueller, for appellees.

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

Author: Bell

[ 377 Pa. Page 35]

OPINION BY MR. JUSTICE BELL

Mrs. Freund brought an action of trespass against the defendants for injuries resulting from a fall on the pavement of the defendant, Hyman, on Locust Street, Ephrata, at 1 o'clock in the afternoon of August 22,

[ 377 Pa. Page 361951]

. She appealed from the order of non-suit entered against her by the Court below.

She was walking on the pavement along Locust Street about a foot behind Mrs. Frank and talking with her. The day was clear. Plaintiff's pertinent testimony was as follows: "Q. I show you 'C.P. No. 1' [a photograph] and ask whether that shows the pavement along Locust Street that you were walking along with Mrs. Frank? A. Yes. Q. As you were walking along Locust Street just tell the Court and Jury what happened. A. I was walking with Mrs. Frank --... THE WITNESS: I was walking with Mrs. Frank, and at the factory on Locust Street -- Q. At the factory on Locust Street? A. At the factory on Locust Street I fell, and I fell, and --... Q. Is, or not, the factory the building that is shown on this picture, 'C.P. No. 1'? A. Yes, that is a house. Q. That is a house? A. That is a house. Q. And where did you fall? A. I fall on this step near the tree, and I fall forward. Q. You fell on this step near the tree? A. Very close to the tree. Q. Where it shows the difference between the blocks? A. Down. Q. And you fell down? A. Down. Q. Toward the direction you were walking? A. The direction I was walking. Q. And what happened as you fell? A. I -- it hurt very much first,..."

Mrs. Frank did not see Mrs. Freund fall, but suddenly heard an outcry and saw Mrs. Freund lying on the pavement facing in the direction they were walking. She was lying on the pavement very close to the tree. The photograph shows that a block of the pavement was slightly raised or the other block slightly lowered and that there were two steps very nearby at the factory door. The "step" near the tree which plaintiff mentioned might have referred to either, but we believe she meant the raised block. There was not a scintilla of evidence to show how long this difference

[ 377 Pa. Page 37]

While no authority for such an obvious conclusion is necessary, there is an authority directly in point in Harrison v. Pittsburgh, 353 Pa. 22, 44 A.2d 273. In that case plaintiff slipped off a sewer manhole cover in the middle of the pavement which extended approximately 2 inches above the pavement. The judgment non obstante veredicto was sustained on two points: (1) that the evidence was not sufficient to show negligence, and (2) that plaintiff's evidence did not show that the elevation was the cause of her fall. The Court said (pages 24-25; 24): "The elevation was slight and of a trivial nature, and consequently there was no negligence in permitting it to exist. See: Burns v. City of Pittsburgh, 320 Pa. 92, 181 A. 487; McGlinn v. Philadelphia, 322 Pa. 478, 186 A. 747; Davis v. Potter, supra; Van Ormer v. Pittsburgh, 347 Pa. 115, 31 A.2d 503; German v. McKeesport City, 137 Pa. Superior Ct. 41, 8 A.2d 437... The facts in this case are analogous to those in Davis v. Potter, 340 Pa. 485, 17 A.2d 338, and are governed by that decision. Mr. Justice HORACE STERN said (page 487): 'What she complains of is the slight elevation of part of the sidewalk, but she id not stumble or trip over it and whether it was actually the cause of her ...


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