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GREEN v. RABINOWITZ (01/02/62)

January 2, 1962

GREEN
v.
RABINOWITZ, APPELLANT.



Appeal, No. 310, Jan. T., 1961, from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1958, No. 1764, in case of William Green v. Abraham Rabinowitz et al. Judgment affirmed.

COUNSEL

Michael A. Foley, for appellants.

Herbert Somerson, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

[ 405 Pa. Page 518]

OPINION PER CURIAM.

On February 20, 1958, the plaintiff William Green slipped on an icy sidewalk in front of premises owned by Abraham Rabinowitz and Sarah R. Rabinowitz at the southeast corner of Fairmount Avenue and Eleventh Street, Philadelphia, and sustained serious injuries. He brought an action in trespass against Mr. and Mrs. Rabinowitz and the City of Philadelphia. At the ensuing trial a non-suit was entered as to Mrs. Rabinowitz since she had died prior to the trial. The jury returned a verdict in the sum of $20,500 in favor of the plaintiff against Abraham Rabinowitz and exonerated the City of Philadelphia from all liability. The defendant moved for judgment n.o.v. and a new trial. The trial court refused both motions and the defendant appealed.

The defendant contends that the plaintiff did not prove any negligence on his part and that the charge of the court was prejudicial to him.

[ 405 Pa. Page 519]

The plaintiff testified that on the night of the accident at about 7 o'clock he was walking east on the south side of Fairmount Avenue and that when he reached a point about 30 feet from the curb line his feet struck something and he fell. A later examination revealed that he had fallen because of lumps and ridges of ice underfoot. The sidewalk over which he had traveled before he reached the point of the fall was icy but not broken by lumps or ridges. The ridges where he fell measured from 4-1/2 to 5 inches in height. Other witnesses confirmed the plaintiff's testimony with regard to the presence of the ridges of ice and snow.

As previously stated, the accident occurred on February 20th. On February 15th and 16th there was a total snowfall of thirteen inches. The lower court stated in its opinion: "The United States Department of Commerce, Weather Bureau Report of February, 1958, for Philadelphia (International Airport), establishes that on none of the dates between February 15 and 20, 1958, did the temperature rise in average above 28 degrees Fahrenheit. Except for a high temperature on February 15, 1958 of 34 degrees and on February 20, 1958 of 33 degrees, there were no temperature readings above the Fahrenheit freezing point of 32 degrees during the period in question. Accordingly, it may be reasonably inferred that the snow and ice condition of defendant's sidewalk at the time of the accident, existed since the snowfall ended, during the afternoon of February 16, 1958. Also, it may be reasonably inferred as a result of the temperatures during the period in question that no appreciable amount of snow and ice disappearance occurred as a result of melting."

Did the defendant owner have knowledge of the condition of the sidewalk in front of his property? He resided one block away from the site of the accident. Since he was ill at the time of the trial, his son, by agreement between opposing counsel, testified in cross-examination

[ 405 Pa. Page 520]

    by the plaintiff, in his father's stead. The cross-examination brought forth the following: "Q. Your father stated when giving depositions that he passed the premises a week before the date of the accident and that he would pass there perhaps as often as once or twice daily. That is what your father said. It is agreed he said that under oath and I suppose you would not attempt to change your father's account of the passing of that place, would you? A. Well, ...


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