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MARTIN v. PITTSBURGH (12/14/61)

December 14, 1961

MARTIN
v.
PITTSBURGH, APPELLANT.



Appeal, No. 205, April T., 1961, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1958, No. 870, in case of Alice Martin et vir v. City of Pittsburgh. Judgment affirmed.

COUNSEL

Marcus Aaron, II, Assistant City Solicitor, with him david W. Craig, City Solicitor, for City of Pittsburgh, appellant.

Stanley W. Greenfield, with him George S. Goldstein, for appellees.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Flood

[ 197 Pa. Super. Page 2]

OPINION BY FLOOD, J.

The defendant has appealed from the court's refusal of its motion for judgment n.o.v. following a verdict for the plaintiffs in a suit arising out of a fall upon the crosswalk of an alley in the City of Pittsburgh. The wife-plaintiff testified that she fell when her foot went into a hole about two feet long, six inches wide and three to four inches deep. No question of contributory negligence is raised on this appeal. Mrs. Martin suffered a broken ankle and was taken to the hospital. The hospital record states: "Chief Complaints: Fell on the ice and hurt her right knee and ankle."

The defendant's motion is based upon three grounds (1) that testimony as to the general condition of the street only, but not as to the existence of the particular defect prior to the accident, does not establish constructive notice to the city; (2) that the plaintiffs' evidence

[ 197 Pa. Super. Page 3]

    presented alternative theories, on one of which, that the plaintiff slipped on the ice, the city would not be held liable, and the jury should not be permitted to speculate between them; (3) that the medical testimony indicates that her injuries resulted from slipping or falling on the ice, and therefore the city's negligence in allowing the hole to remain in the crosswalk is not the proximate cause of the injury.

1. As to notice, Mrs. Martin testified that the condition of the street at the place where she fell was bad, that it was bad before she fell, that it has "been bad all along". She had lived in the area "I guess about seven or eight years". On cross-examination, she testified that "it was there all the time and a lot more".

Her witness, Jean Taylor, said that "in terms of weeks or days" the condition of the street at that place "was very bad and had holes in the street". She had seen that particular hole, into which the plaintiff fell, before.

James Taylor, testified that the plaintiff's foot was in the hole when he picked her up after the fall, that the roadway had a lot of holes in it, and that this ...


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