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MITCHELL v. ROCHESTER BOROUGH (04/20/59)

April 20, 1959

MITCHELL
v.
ROCHESTER BOROUGH, APPELLANT.



Appeals, Nos. 49 and 50, March T., 1959, from judgments of Court of Common Pleas of Beaver County, March T., 1957, Nos. 87 and 88, in case of Bertha Mitchell v. Borough of Rochester et al., and Margaret Vannauker v. Same. Judgments affirmed.

COUNSEL

Robert L. Orr, with him J. Frank Kelker, and Reed, Ewing, Orr & Reed, for appellant.

John D. Ray, with him James B. Ceris, and Ray, Good & Hudson, for plaintiffs, appellees.

John N. Sawyer, with him Moorhead, Marshall & Sawyer, for additional defendant, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Musmanno

[ 395 Pa. Page 374]

OPINION BY MR. JUSTICE MUSMANNO

Adams Street, a 40-foot wide thoroughfare in Rochester, accomplishes the unique feat, at the point involved in this litigation, of running upgrade and downgrade at the same time. This paradox is explained

[ 395 Pa. Page 375]

    by the fact that a strip 12 foot wide on the northern sides rises, by means of a ramp, to another thoroughfare called Rome Avenue, while the rest of the street proceeds downhill to an intersecting highway known as New Hampshire Avenue. The ramp, which lifts Adams Street to the elevation necessary to carry it to Rome Avenue, is supported by a concrete abutment which becomes a wall-like partition, severing the street into two parts.

At the bottom of the ramp, on November 27, 1955, a sheet of ice had formed. In the early morning of that day (2:30 o'clock), Mrs. Bertha Mitchell was driving her Mercury automobile westwardly when she hit the ice, skidded violently, and smashed into the front part of the concrete abutment. A few minutes later another car, driven by an Earl Klingseisen, skidded on the same patch of ice and crashed into the rear end of the crippled Mitchell car. A wrecker car, after being called, appeared on the scene to handle the two immobilized machines and while it was engaged in this operation, a fourth car came along and also hit the ice, skidding into the rear of the wrecker car. From this Arctic merry-go-round, or vehicular Virginia reel, there emerged, not unnaturally, lawsuits.

Mrs. Mitchell and the passenger riding with her, Mrs. Margaret Vannauker, were injured in the collisions and they filed individual actions in trespass against the Borough of Rochester. The borough brought in as an additional defendant, a Grace Engle, the owner of a flower shop which abutted on Adams Street in the vicinity of the point where the glacial melee occurred.

It was the borough's contention that the water which had congealed on Adams Street had been improperly discharged on to the ...


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