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WALSH ET UX. v. CITY PHILADELPHIA ET AL.APPEAL KOLTUN ET AL. (07/13/54)

July 13, 1954

WALSH ET UX.
v.
CITY OF PHILADELPHIA ET AL.APPEAL OF KOLTUN ET AL.



COUNSEL

Michael A. Foley, Philadelphia, for appellants.

Michael Shekmar, Joseph G. Feldman, Philadelphia, for appellee.

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

Author: Ross

[ 175 Pa. Super. Page 623]

ROSS Judge.

This is an action of trespass brought by Vera Walsh and Robert C. Walsh, her husband, to recover damages for injuries sustained by Vera Walsh in a sidewalk fall. The action was brought against the City of Philadelphia, and the city brought on the record as additional defendants the owners of the premises, Harry Kolchinsky and Esther Kolchinsky, his wife, and the first floor tenants, Max Koltun and Ray Koltun, his wife. By agreement of the parties the city was taken out of the case. The jury returned a verdict in favor of plaintiffs, and the trial court decided as a matter of law on undisputed facts that judgment should be entered against Max and Ray Koltun alone. From this determination and from the refusal of their motion for judgment n. o. v., the Koltuns have appealed to this Court.

When, as here, the appeal is from the refusal to enter judgment n. o. v. for defendant, we must consider the testimony in the light most advantageous to plaintiffs, giving them the benefit of every fact and every reasonable inference therefrom, resolving conflicts in the testimony in their favor. Smith v. Kravitz, 173 Pa. Super. 11, 93 A.2d 889. So considered, the facts of the instant case may be summarized as follows: On November 16, 1951, in the middle of the afternoon, the wife-plaintiff (hereinafter referred to as plaintiff) left her

[ 175 Pa. Super. Page 624]

    place of employment to go to 'Max's Lunch Room' for a cup of coffee. At that time it was 'drizzling'. She crossed Walton Avenue 'diagonally' with 'about seven or eight people in front of' her. Immediately in front of her was a 'tall' man, so close she 'could have touched him'. When the group crossing the street reached the far side of it 'everybody else stepped up the curb, and I put my foot up to step on the curb, and my foot caught where the piece of curb was out, and it threw me down'. The break in the curb which caused plaintiff to fall was 12 inches wide and 7 inches deep 'outside, towards the street', and 4 inches deep where it met the sidewalk. Plaintiff stated she was not aware of the existence of the 'hole' prior to the time of the accident. She explained that she failed to observe it then because of the 'people in front of me, and this big, tall colored fellow * * * right in front of me'.

On these facts the question is whether plaintiff was contributorily negligent as a matter of law. We are agreed that she was, and for that reason will reverse the judgment of the court below.

One who, in broad daylight, walks into an obvious defect in a sidewalk is presumptively negligent and the burden is upon that person to show conditions outside of himself which prevented his seeing the defect, or which would excuse failure to observe it. McDonald v. Borough of Mars, 371 Pa. 625, 92 A.2d 199; Leson v. City of Pittsburgh, 353 Pa. 207, 44 A.2d 577; Lerner v. City of Philadelphia, 221 Pa. 294, 70 A. 755, 21 L.R.A.,N.S., 614; Petruski v. Duquesne City, 152 Pa. Super. 393, 33 A.2d 436; Walker v. Stern, 132 Pa. Super. 343, 200 A. 897. It is entirely clear from an examination of the record, particularly including pictures introduced as exhibits by the plaintiff, that the break in the curb which caused plaintiff to fall was an obvious defect. We think further that

[ 175 Pa. Super. Page 625]

    plaintiff has failed to show conditions which would excuse her ...


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