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BROMBERG v. GEKOSKI. (03/19/63)

THE SUPREME COURT OF PENNSYLVANIA


March 19, 1963

BROMBERG, APPELLANT,
v.
GEKOSKI.

Appeal, No. 72, Jan. T., 1963, from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1956, No. 446, in case of Harry Bromberg and Pauline Bromberg, his wife, v. Ida Gekoski, City of Philadelphia, and Ralph Napoli, also known as Ralph Napoli, Jr. Judgment reversed.

COUNSEL

Avram G. Adler, with him Freedman, Landy and Lorry, for appellants.

Norman Paul Harvey, with him John J. McDevitt, 3rd, for Ida Gekoski, appellee.

Murray C. Goldman, Assistant City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and Edward Greb Bauer, Jr., City Solicitor, for City of Philadelphia, appellee.

Before Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Eagen

[ 410 Pa. Page 322]

OPINION BY MR. JUSTICE EAGEN

The wife plaintiff, a pedestrian, fell and was seriously injured when she stepped into a hole*fn1 located on a small strip of land running between the public sidewalk and the curbstone of the cartway. This action for damages followed and resulted in a jury verdict for the defendants. A motion for a new trial was denied. Plaintiffs appeal from the judgment entered upon the verdict.

In charging the jury as to the duty of care required of a possessor of land in maintaining the sidewalks in front of his property, which are open for use by the traveling public, the trial judge inadvertently described a defective condition as "one that appears to be very, very*fn2 dangerous." This, of course, was legally incorrect and placed too great a standard upon the plaintiffs in establishing the defendants' culpability. Sidewalks must be so maintained that they will not present an unreasonable risk of harm to pedestrians. What constitutes such a condition depends upon all of the circumstances. It may generally be defined as one attended with an unreasonable risk of harm, one that is hazardous or unsafe or one that constitutes a danger to persons traveling thereon. It does not have to be such that is very, very hazardous, very, very unsafe or very, very dangerous. See, Silberman v. Dubin, 155 Pa. Superior Ct. 3, 36 A.2d 854 (1944); McCracken v. Curwensville

[ 410 Pa. Page 323]

    while the right to maintain grass plots adjacent to public sidewalks is beyond question, the possessor of land should never ignore the fact that the traveling public may deviate from the improved portion of the sidewalk over onto the unpaved portion thereof.

It is argued, as well it might be, that the above mentioned omissions reacted to the benefit of the plaintiffs' case. This may or may not be so. When you consider the situation from the opposite direction, the jury may also have concluded that there was no duty to maintain in a reasonably safe condition anything other than the improved portion of the sidewalk and since the fall did not occur thereon, no liability ensued. The jury was entitled to have a clarification of the issues presented for its decision and this is one of the prime responsibilities of the trial judge. See, Pleasant v. Carr, 387 Pa. 634, 130 A.2d 189 (1957).

It is further noted that counsel specifically requested instructions relevant to the duty to maintain plots of ground abutting public sidewalks and the likelihood of their use by pedestrians. These instructions were refused.

Finally, it is argued that the plaintiffs failed to prove that the alleged depression was the actual cause of the wife plaintiff's fall and that the defendants were entitled to a directed verdict as a matter of law. Viewing the testimony in a light most favorable to plaintiffs' case as we are required to do in resolving this question, we cannot sustain this contention.

Disposition

Judgment reversed and a new trial is ordered.


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