Appeal, No. 1, April T., 1955, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1951, No. 367, in case of Clara E. Smith et vir v. Sheraden Bank. Judgment reversed.
A. H. Rosenberg, with him Edward Goldberg, and Rosenberg and Rosenberg, for appellants.
H. E. McCamey, with him Joseph P. Fisher and Dickie, McCamey, Chilcote, Reif & Robinson, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 178 Pa. Super. Page 623]
Appellants, husband and wife, brought this action in trespass for damages for personal injuries sustained by the wife as the result of a fall on the sidewalk abutting defendant bank's premises in the City of Pittsburgh. After the jury returned verdicts in favor of the plaintiffs the court below entered judgment n.o.v. on the ground that the wife-plaintiff was contributorily negligent, and the plaintiffs have taken this appeal.
On the morning of June 8, 1950 the wife-plaintiff (hereinafter referred to as plaintiff) was walking from her home to a street car stop at the intersection of Hillsboro and Chartiers streets, where she intended to take a street car to her place of employment in downtown Pittsburgh. En route, on the sidewalk adjoining defendant's property she tripped and fell on what she described in her testimony as a "bulge", about three or four inches in height, between blocks of the pavement. Grass growing between the blocks had concealed the defect. Plaintiff testified that prior to the time of her fall she had been unaware of the defective condition of the sidewalk because for at least two years before she had not traversed it.
Appellee at the trial, and now before us, has emphasized a variance between appellant's pleading and proof in that the complaint alleged a hole or depression in the sidewalk whereas the evidence showed a bulge or rise. Substantial, material conformity is all that is required (Rader v. Palletz, 160 Pa. Superior Ct. 335, 51 A.2d 344; Widmer v. Widmer, 176 Pa. Superior Ct. 264, 106 A.2d 875), and in our opinion
[ 178 Pa. Super. Page 624]
the variance in description of the defect was not of such degree as to hamper seriously appellee's preparation of its defense.
The learned court below in its opinion states that binding instructions should have been granted defendant because plaintiff was clearly guilty of contributory negligence, and in support thereof cites Allshouse v. Wilkinsburg, 343 Pa. 323, 22 A.2d 756, and Davis v. Potter, 340 Pa. 485, 17 A.2d 338.
In the Allshouse case plaintiff, on a bright, clear day, tripped over the edge of a section of a concrete sidewalk which was raised two and a half inches above the section adjoining it. The Supreme Court, in affirming the entry of a compulsory non-suit, held that the evidence established that plaintiff was guilty of contributory negligence as a matter of law, stating at page 324: "He was bound to see what was plainly before him and similarity of color of the sections of the sidewalk and observation of traffic conditions in a highway which he was approaching could not excuse him." However, it would ...