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O'TOOLE v. DUNMORE BOROUGH (07/17/61)

July 17, 1961

O'TOOLE
v.
DUNMORE BOROUGH, APPELLANT.



Appeal, No. 120, Jan. T., 1961, from judgment of Court of Common Pleas of Lackawanna County, Jan. T., 1958, No. 914, in case of Paul F. O'Toole v. Borough of Dunmore. Judgment affirmed.

COUNSEL

Joseph E. Gallagher, with him William J. Kearney, Carlon M. O'Malley, Sr., and O'Malley, Morgan, Bour & Gallagher, for appellant.

Jerome E. Parker, with him John M. Kelly, and John J. Scott, for appellee.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 404 Pa. Page 480]

OPINION BY MR. JUSTICE MUSMANNO.

On the afternoon of January 7, 1957, the plaintiff in this case, Paul F. O'Toole, left his home at 402 Ward Street, Dunmore, on a perfectly wholesome and harmless errand - to purchase a loaf of bread, which his wife needed for the evening meal. He returned an hour or two later without the bread and, in addition, a fractured hip. His innocent but disastrous venture was

[ 404 Pa. Page 481]

    followed by hospitalization, surgery, crutches, cane, a long convalescence, a limp, considerable expenditure of funds and impairment of earning power. He brought suit in trespass against the Borough of Dunmore as the party responsible for his misfortune.

Specifically he asserted that after he had purchased the bread (with some ice cream as an added delicacy), he started for his car parked close to the grocery store, but that as he reached the intersection of Throop and Boyle Streets, his feet flew out from under him, and then as he lay helpless where he fell he saw for the first time the cause of his mishap - a hole in the sidewalk which had been concealed from his eyes by the curtain of snow which was falling. He noted that the hole was about "2 feet in diameter," by "3 to 4 inches deep," and that ice had encrusted within, its upper plane being about one-half inch from the surface of the sidewalk.

The borough denied the liability charged by the plaintiff. At the ensuing trial the jury returned a money verdict in favor of the plaintiff and the defendant moved for judgment n.o.v., as well as a new trial. When the lower court affirmed the verdict, the defendant appealed.

This case presents a rather unusual factual situation in that the defendant contends that the plaintiff's story of the bread-procuring expedition which ended in bonebreaking catastrophe is sheer fiction; and that the plaintiff is endeavoring to have the borough pay for the plaintiff's self-achieved folly when he fell, not on the street, but on his own premises. In support of this accusation, the defendant produced an employee of the Scranton Fire Department, who testified that as he rode in the ...


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