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GRIMM v. PITTSBURGH. (04/16/63)

April 16, 1963

GRIMM, APPELLANT,
v.
PITTSBURGH.



Appeal, No. 90, March T., 1963, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 2940, in case of James Grimm v. City of Pittsburgh. Judgment affirmed.

COUNSEL

Hymen Schlesinger, for appellant.

Robert Engel, Assistant City Solicitor, with him David W. Craig, City Solicitor, for City of Pittsburgh, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Musmanno

[ 410 Pa. Page 515]

OPINION BY MR. JUSTICE MUSMANNO

This case is an illustration of how a complaining party's case may possibly come to an undesired end because of the dilatoriness of counsel, of client, or of both. The accident, which is the subject of the litigation, occurred in December, 1946. The ensuing legal proceedings did not reach final determination until October, 1962, nearly sixteen years later. This delay was not due to the asserted "backlog" currently under discussion.

On December 15, 1946, the plaintiff, James Grimm, was injured when he fell, as the result of departing from wooden steps attached to the hill he was descending and attempting to cross a rugged path which paralleled the stairway. He testified that in making his way over a shallow concrete gutter in the center of the path his right foot slipped and then his left toe caught in a hole alongside the gutter, causing him to fall. At the trial he was asked to describe the hole which was his undoing. All he could say was that it was a "small hole." Both his own counsel and the attorney for the defendant sought to have him indicate the nature of the hole. The most he said was that it was big enough to catch his toe. Although he probably meant the toe of his shoe, he kept repeating that the hole was just big enough to catch his toe.

[ 410 Pa. Page 516]

When he was asked specifically to describe the hole he testified: "Well, there was a small hole there beside the gutter where I stepped across there big enough to catch my toe in and throw me."

Nothing could induce him to amplify this meager description. At least five different times he said that the hole was that kind of a hole that one's toe goes into. Since toes differ in size and occasionally in configuration, the plaintiff's description offers little for an appellate court from which to visualize the alleged earthen irregularity which precipitated the plaintiff's fall. Nor was the scant portrayal of the offending hole due to lack of opportunity on the part of the plaintiff to study the hole. His attorney asked him: "How long were you lying in that spot afterwards?" (After the fall). He replied that he was there about forty minutes. His attorney then asked: "And while you were lying there did you have occasion to examine that hole, the area?"

The plaintiff replied in the affirmative. This then followed: "Q. What did you observe about it? A. Well, I observed - Q. Describe it. A. Well, there was a small hole there beside the gutter where I stepped across there big enough to catch my toe in and throw me. Q. By small what do you mean? A. Well, it's hard to describe. Q. Illustrate to the Jury, can you? ... A. Hard to describe an irregular hole. Just big enough to catch your toe and throw you. Q. Can you tell us how wide or how long or what? Anything to give us any estimate. ... A. My answer, the hole was big enough for any toe to go in. That is as near as I can describe it. Q. You said that you examined the hole? A. Yes. Q. What did you observe about it? A. Fresh impression where my toe had went in the hole."

The probable explanation for the plaintiff's inability to describe how the accident occurred was that time, with its erasing ...


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