the general statement of the Musleva case and are not in point.
In a recent case decided by the Supreme Court of Pennsylvania, Breskin v. 535 Fifth Avenue, 1955, 381 Pa. 461, 113 A.2d 316, the plaintiff was leaving a store and slipped and fell. In that case the plaintiff testified that she did not know what caused her foot to be caught, but upon examination determined that a triangular break at the point of occurrence was the cause.
The depression in the Breskin case was approximately four by five inches in size and was about one and one-half inches in depth. The court said, 381 Pa. at page 463, 113 A.2d at page 318, 'It is true, as contended by original defendant, that at some points in her testimony she did not fix with exactitude the cause of her fall or the exact spot; but her testimony would permit a finding of the foregoing, and the matter was for the jury to determine.' In Breskin v. 535 Fifth Avenue, 1955, 381 Pa. 461, at page 463, 113 A.2d 316, at page 318, the Supreme Court of Pennsylvania said, 'What constitutes a defect sufficient to render the property owner liable must be determined in the light of the circumstances of the particular case, and 'except where the defect is obviously trivial, that question must be submitted to the jury'.'
In further support of the position that the proximate cause of the plaintiff's fall is a jury question, one need only read Hayden v. Philadelphia, 1955, 381 Pa. 134, 112 A.2d 812, 813. In that case the lower court said: "* * * the jury could, at best, only guess whether the hole into which plaintiff fell was the same hole created by the Gas Company.' * * *' In rejecting this contention, the Supreme Court commented, 381 Pa. at page 137, 112 A.2d at page 813, 'Therefore, the fact that there was some discrepancy as to the exact location of the defect is immaterial. It was again for the jury to determine the fact from the evidence, and it resolved to believe the plaintiff's version.'
In reviewing the testimony of all witnesses at the trial, I cannot find that the plaintiff's case was so inconclusive or so lacking in persuasiveness as to take it away from the consideration of the jury as a matter of law.
As to the second issue, viz., whether the plaintiff was guilty of contributory negligence; she testified that she looked to the ground and could observe no danger in proceeding or any depression or change or level on the premises. It is also evident from the testimony that the plaintiff was not so overburdened with bundles that she could not observe the route she intended to follow. Indeed, the record is lacking of any testimony that her field of vision was obstructed in any manner by her bundles. The plaintiff can be held only to the exercise of ordinary care. For in Bruch v. Philadelphia, 1897, 181 Pa. 588, at page 591, 37 A. 818, at page 819, the court said, '(Persons) walking on the pavements of a large city, are not bound to exercise extraordinary care. Care according to the (attending) circumstances is all the law enjoins.' They have the right to assume the pavements are reasonably safe, and that they, by the ordinary use of their eyes, (and going) at an ordinary pace, can safely walk on them.' It has become well settled law in Pennsylvania since Coolbroth v. Pennsylvania Railroad Company, 1904, 209 Pa. 433, at page 439, 58 A. 808, at page 810, that "The question of contributory negligence cannot be treated as one of law unless the facts and the inferences from them are free from doubt. If there is doubt as to either, the case is for the jury."
An interesting case of recent decision and nearly on all fours with the present case is DiMenna v. Philadelphia, 1955, 381 Pa. 596, 114 A.2d 123. This was a case of a partially blind woman slipping on a raised section of pavement. The Court indicated that the fact of her age and semi-blindness imposed upon her a greater duty of watchfulness. Even so, the court concluded that where the testimony was not very clear in regard to the manner in which the accident happened, it was a jury question.
The case of McDonald v. Mars Borough, 1952, 371 Pa. 625, 92 A.2d 199, cited by defendant, is clearly distinguishable on one important fact. There the plaintiff was fully aware of the defect long before the accident. That is not our case. The present plaintiff testified this was the first time she had ever been on the premises of the defendant. Additionally, defendant cites Harrison v. Pittsburgh, 1945, 353 Pa. 22, 44 A.2d 273, to support his allegation of contributory negligence of plaintiff. That case is readily distinguishable on its facts. The plaintiff there did not allege she stumbled because of the elevation of a sewer manhole cover, but merely that she slipped on something.
It cannot be said as a matter of law that the defect in the instant case was trivial, and the question of liability was properly left to the jury. While the plaintiff was under a duty to see where she was walking, she can be charged only with the use of ordinary care. Since there was competent testimony to support the verdict, it should stand.
Accordingly, defendant's Motion for Judgment n.o.v. is denied.
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