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O'TOOLE v. BRADDOCK BOROUGH. (11/25/59)

November 25, 1959

O'TOOLE, APPELLANT,
v.
BRADDOCK BOROUGH.



Appeals, Nos. 77 and 79, March T., 1959, from judgment of Court of Common Pleas of Allegheny County, July T., 1955, No. 2684, in cases of Mary O'Toole v. Borough of Braddock, and Thomas O'Toole v. Same. Judgment reversed. Trespass for personal injuries. Before THOMPSON, J. Verdict entered for defendant; plaintiffs' motion for new trial refused and judgment entered on verdict, opinion by WEISS, J. Plaintiffs appealed.

COUNSEL

George S. Goldstein, with him Allen S. Gordon, and Sidney J. Sable, for appellants.

Francis A. Muracca, Borough Solicitor, for appellee.

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

Author: Musmanno

[ 397 Pa. Page 563]

OPINION BY MR. JUSTICE MUSMANNO

Mrs. Mary O'Toole and her husband, Thomas O'Toole brought suit against the Borough of Braddock, alleging the borough was negligent in its maintenance of a sidewalk at the corner of Fifth and Maple Streets and that, because of an alleged defect in the sidewalk at that point, Mrs. O'Toole fell and was injured. The jury returned a verdict for the defendant and the plaintiffs appealed, urging various errors on the part of the Trial Judge.

In charging the jury, the Judge said: "The burden of proof is on the plaintiff to establish her right of recovery and the amount of the recovery, and if the plaintiff is unable to do that satisfactorily, the verdict must be for the defendant."

[ 397 Pa. Page 564]

This instruction was erroneous, since it supplied the jury with no measurement as to the burden of proof imposed on the plaintiff. It is axiomatic that the criterion of satisfaction varies considerably, according to the thinking of the individual who is to be satisfied. What might be completely satisfactory to one person could be irritation to another.

The law is specific and long ago established that the plaintiff in a civil action has the burden of proof, a burden which must be met by a preponderance of the evidence. When the jury finds that the pan on the plaintiff's side of the scales of justice has descended below the horizontal, while the defendant's dish has risen above the level plane, the plaintiff has met his burden, and the jury is required to return a verdict in favor of the plaintiff. Se-Ling Hosiery Co. v. Margulies, 364 Pa. 45.

The Trial Judge also erred when he charged the jury: "A hole or obstruction or anything of that kind in a sidewalk which is not more than an inch and a half or two inches in depth, I believe, is not enough to fix responsibility upon the municipality. If it is a larger hole or a deeper hole, then it is enough.Whether that applies to an angle iron which goes around the corner of the curbline, I think the courts have not spoken upon that matter, and we will leave that up to you."

The depth of a hole or the size of an obstruction which constitutes tortious impediment has not been measured by the law, and obviously cannot be measured on a permanent basis, because the alleged negligence in any given case must depend upon the particular circumstances in controversy. A trial judge should not specify to the jury the exact number of inches, below or above which negligence attaches or disengages. The criterion to be ...


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