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EMILY POSKIN v. PENNSYLVANIA RAILROAD COMPANY (01/14/55)

January 14, 1955

EMILY POSKIN, AND EMILY POSKIN, ADMINISTRATRIX OF THE ESTATE OF JOSEPH V. POSKIN, DECEASED, APPELLANTS,
v.
THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION



Appeals, Nos. 241 and 242, April T., 1954, from judgments of Court of Common Pleas of Allegheny County, Jan. T., 1946, No. 2256, in case of Emily Poskin, admrx., estate of Joseph V. Poskin, deceased, v. The Pennsylvania Railroad Company. Judgments affirmed.

COUNSEL

Louis Vaira, with him Anthony A. Barrante, Pittsburgh, for appellants.

Bruce R. Martin, with him Dalzell, Pringle, Bredin & Martin, Pittsburgh, for appellee.

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

Author: Hirt

[ 177 Pa. Super. Page 349]

OPINION BY HIRT, J.,

This action was brought by husband and wife for damages resulting from injuries to the wife. No complaint was filed until more than six months later and in the meantime the husband had died. The case did not come on for trial until almost ten years after the accident. The jury found for the wife, Emily Poskin (to whom we will refer as the plaintiff) in the sum of $2,250 and in favor of the estate of her husband in an amount covering the medical expense. These are appeals from the judgments entered for the defendant n.o.v.

The plaintiff in company with her daughter and three young children alighted from a passenger train

[ 177 Pa. Super. Page 350]

    at the Fourth Avenue Station of the defendant railroad in Pittsburgh at about 9 o'clock in the morning of November 20, 1943. The station platform is paved with brick. Plaintiff walked hand in hand with two of her grandchildren in the direction of the exit to the street. On the way she noticed that one of the bricks in front of her was somewhat lower than the others and she tried to avoid stepping upon it but could not because of the children. Her testimony in detail as to how the accident happened is not entirely consistent but she charged the defendant with negligence because of a loose brick in the station platform which caused her to fall when she stepped upon it. The version of the occurrence most favorable to her, appears thus in her testimony: "Well, there was several bricks loose, but this one was down more on the corner, oh, I'd say maybe half an inch more or so, because when I stepped on there it was loose and it kind of balanced, you see, and it throwed me." She fell on her fact to the pavement and was injured. The defendant's local superintendent inspected the brick after the occurrence and although he testified that it was not loose, he, by actual measurement found one end of the brick exactly 1/2 inch below the grade of the surface of the pavement. The controlling question therefore raised by the plaintiff's testimony in its most favorable aspects, is whether the loose brick which caused her fall charges the defendant with actionable negligence under the circumstances.

A depression of but one-half inch in a brick pavement in itself is too trivial for serious consideration. Cf. German v. McKeesport City, 137 Pa. Superior Ct. 41, 48, 8 A.2d 437 where we held that "a variation - 1 1/2 inches - between the adjoining ends of flagstones in a street crossing is not evidence of negligence imposing liability for injuries to a pedestrian who fell

[ 177 Pa. Super. Page 351]

    at that point." And at page 50, note the comment of KELLER, then President Judge, as to risks, ever present on city streets, which a pedestrian must assume. In Morris v. Philadelphia, 195 Pa. 372, 45 A. 1068, where the controlling question was the negligence of the city, it was held that the fact that a brick in a slight depression in a sidewalk which had become loosened to some extent without getting out of position, was not enough to establish liability for damages for personal injuries to a woman who fell in stepping upon the brick when it turned under her foot causing her to lose her balance. The mere fact that a pedestrian is injured by a loose brick under foot in a sidewalk is not of itself sufficient to charge a municipality with negligence. To establish liability there must be proof that the city had prior notice, either actual or constructive, of the defect. Emery v. Pittsburgh, 275 Pa. 551, 119 A. 603. It was the duty of the defendant railroad not only to transport the plaintiff passenger safely but to provide reasonably safe means of egress from its trains to the sidewalk of the street above. While a higher degree of care is required of a carrier of passengers for hire, in the ...


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