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NEBEL v. PITTSBURGH. (11/12/56)

November 12, 1956

NEBEL, APPELLANT,
v.
PITTSBURGH.



Appeal, No. 148, March T., 1955, from judgment and order of Court of Common Pleas of Allegheny County, Apr. T., 1952, No. 2693, in case of Magdalene Nebel v. City of Pittsburgh et al. Judgment and order affirmed. Trespass for personal injuries. Before ELLENBOGEN, J. Compulsory non-suit entered as to defendant City; plaintiff's motion to take off non-suit refused and final order entered. Plaintiff appealed.

COUNSEL

Lisle A. Zehner, with him Mercer & Buckley, for appellant.

Thomas E. Barton, Assistant City Solicitor, with him J. Frank McKenna Jr., City Solicitor, for defendant-appellee, and Leon Wald, for additional defendant-appellee.

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

Author: Chidsey

[ 386 Pa. Page 395]

OPINION BY MR. JUSTICE CHIDSEY

This appeal resulted from the refusal of the court below, sitting en banc, to take off a compulsory non-suit which was entered on the ground there was no proof that the defendant municipality was negligent. The suit was originally brought against the City of Pittsburgh, and the original defendant joined Marie Leahy as an additional defendant.

Viewing the evidence in the light most favorable to the plaintiff, as we are required to do (O'Connor v. Philadelphia Suburban Transportation Company, 362 Pa. 404, 66 A.2d 818), the facts are: On the afternoon of January 29, 1952, at approximately four P.M., the plaintiff, then 69 years of age, was injured as a result of a fall on Dagmar Avenue in the City of Pittsburgh. Her fall was caused by a patch of ice which was hidden from her view by a fall of fresh snow less than one inch in depth. Dagmar Avenue is a steep street and the plaintiff was walking uphill on the sidewalk to the home of her daughter, 1634 Dagmar Avenue, where she had been living for approximately a year. The plaintiff testified that she had boarded a trolley car in downtown

[ 386 Pa. Page 396]

Pittsburgh for her home approximately a half hour before the accident and at that time it was not snowing; that it began snowing during the ride home and was still snowing at the time she fell. The sidewalk involved was made of concrete and there was no evidence that it was defective or in a state of disrepair. The plaintiff stated that she was having no difficulty in walking along the sidewalk and that she was the first person to walk on the sidewalk after the snow had commenced to fall; that when she reached a point in front of 1622 Dagmar Avenue, the home of the additional defendant, she suddenly fell. No one witnessed the plaintiff's fall except herself. Immediately next to the property owned by the additional defendant, going uphill, is a vacant lot owned by the City of Pittsburgh. Plaintiff testified that after falling, she discovered ice at the point of her fall underneath the snow, that the ice was rough and had ridges on it and extended "some distance". Plaintiff did not describe how large an area the ice covered, how thick it was, or describe the ridges or give their size. No other witness described the icy condition of the sidewalk on the day in question and there was no evidence whatsoever as to how long the ice had existed at that particular spot preceding the accident. Nor was there any evidence of when any precipitation of snow or rain had occurred prior thereto.

Plaintiff contended at the trial that an unusual drainage condition existed on the vacant lot owned by the defendant city whereon an excessive volume of water drained from the lot out onto the sidewalk and downhill over the sidewalk of the additional defendant; that in periods of cold weather this drainage would freeze, causing an icy condition to exist on the sidewalk, and that this icy condition was what caused the plaintiff to fall. It was not contended that there were structures of any

[ 386 Pa. Page 397]

    kind on this lot carrying the water onto the sidewalk or that the water which flowed from it was anything but a natural runoff from rain or snow which fell on the lot and followed the natural downhill lay of the land. The plaintiff testified that she had no knowledge of any drainage problem with respect to surface water coming off the vacant lot and draining over the sidewalk. Mr. Walsh, plaintiff's grandson, testified that approximately half a dozen times he had seen water flowing from the lot onto the sidewalk and at times he had seen it frozen; that he had seen ice on this portion of the sidewalk when there was ice nowhere else on Dagmar Avenue at the time. However, it was developed on cross-examination that the only time Mr. Walsh observed ice at the place in question was when he was unable to drive his car up the hill due to the street being covered with ice and snow. Mrs. Korenich, plaintiff's granddaughter, who had lived at 1634 Dagmar Avenue for a year preceding the accident, testified that she had seen water draining from the lot onto the sidewalk and that she had seen ice form from it. She stated that she had seen this spot wet when the rest of the pavement was dry and that she had seen ice at this spot when there was no ice elsewhere on Dagmar Avenue. She did not say how often she had seen this spot wet or icy, or how much ice or water were present when the rest of the sidewalk was dry, or how long after a rain or snow this portion of the sidewalk remained wet or frozen. The additional ...


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