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REMMEL ET AL. v. GALLAGHER (07/03/59)

July 3, 1959

REMMEL ET AL.
v.
GALLAGHER, APPELLANT, ET AL.



Appeals, Nos. 219 and 220, Oct. T., 1959, from judgments of Court of Common Pleas of Carbon County, Oct. T., 1954, No. 57, in case of Ruth Remmel, in her own right, et al. v. Bernard A. Gallagher et al. Judgments affirmed.

COUNSEL

Roger N. Nanovic, with him Heimbach and Nanovic, for appellant.

Frank D. Llewellyn, with him Daniel P. Dougherty, for appellees.

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

Author: Wright

[ 190 Pa. Super. Page 101]

OPINION BY WRIGHT, J.

Ruth Remmel and her husband, Bertine Remmel, instituted suit in trespass against Bernard A. Gallagher to recover for injuries suffered by the wife-plaintiff as the result of a fall. The Borough of East Mauch Chunk, now Borough of Jim Thorpe, was joined as additional defendant. The trial resulted in verdicts in favor of plaintiffs against the original defendant. A motion by the original defendant for judgment n.o.v. was dismissed, and judgments were entered on the verdicts. These appeals followed. The factual situation is set forth in the following stipulation of counsel:

[ 190 Pa. Super. Page 102]

"Appellant, Bernard A. Gallagher, leased from the Borough of East Mauch Chunk, now Borough of Jim Thorpe, its municipal park. The lease agreement, a copy of which is made 'Exhibit A' hereto, gave to appellant exclusive control of one certain area and reserved to the general public a right of joint user in the remaining area, wherein were the walks and playgrounds. Bingo games were operated by appellant in one of the buildings in the area solely controlled by him. Subsequent to the date of the lease, the appellant, with his own money, constructed a concrete walk from the building wherein the games were conducted, across the area where the public had a right of user, to Fern Street. This walk was of a width of 30 inches and a length of 250 feet. Midway of its length and within the area shared with the public, the walk turned from its original line of travel thirty to thirty-five degrees to a line of new direction. At the point where the walk turned, and for a distance of 16 inches backward toward the building, and forward from said point in its new direction toward Fern Street, for a distance of 8 feet, the walk was elevated 6 inches above the general level of the ground.

"At the conclusion of the bingo game, plaintiff entered upon this walk, and while proceeding toward Fern Street and without knowledge of the turn in the walk, stepped off the walk at the point of its turn and was spun about by the drop to the lower level and fell to the ground, sustaining a dislocated elbow and other injuries. The only other route open to plaintiff for leaving the vicinity of the bingo game was by 10th Street, the route taken by busses and automobiles, but this street had no sidewalks on either side and plaintiff would have been compelled to walk on the edge of the street with her back to the rushing oncoming traffic. 10th Street has the usual light standards, but

[ 190 Pa. Super. Page 103]

    there is no evidence that these lights were burning that night. The accident happened on November 10, 1953 at about 10:00 p.m. The route taken by plaintiff, the concrete walk, was lighted at the point where plaintiff entered and for some distance beyond by the illumination issuing from appellant's home, but beyond that and at the place of the accident it was completely dark.

"There is no evidence that Bernard A. Gallagher or his employees maintained the walk after its construction. There is evidence that a Park Commission, made up of volunteer workers, did maintenance work about the grounds and the walk in question, usually from April through September and sometimes October while the park was used by children and the public generally. Materials for grading, etc., were paid from funds appropriated annually by the borough (and seemingly, the school district ...) to the Park Commission, but school district) of the work done or to be done by the there is no evidence of supervision by the borough (or Park Commission, either by its members acting as a body or individually, or by its employees. There were times when permission was sought of Bernard A. Gallagher by the Park Commission for certain work done by it in the area ...


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