Appeal, No. 71, March T., 1963, from judgment of Court of Common Pleas of Allegheny County, April T., 1957, No. 2084, in case of Cecelia Bosack v. Pittsburgh Railways Company. Judgment reversed.
Earl W. Brieger, with him Parker, Evashwick & Brieger, for appellant.
Frank J. Kernan, with him P.J. McArdle, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is an appeal in a trespass action for personal injuries from a judgment entered upon a verdict in favor of Cecelia Bosack (appellee) and against Pittsburgh Railways Company (appellant).
The accident which resulted in this litigation occurred at approximately 7:30 a.m. on October 2, 1956 - "a nice clear day" - when appellee fell while crossing East Ohio Street near its intersection with East Diamond Street in Pittsburgh. In the center of East Ohio Street - which is approximately 42 feet wide and runs generally east and west - are two railway tracks owned by appellant which tracks are flanked on both sides by lanes for vehicular traffic. The vehicular portion of East Ohio Street is paved with asphalt while that portion of the street immediately adjacent to and between the several rails is paved with cobblestones. East Diamond Street - approximately 32 feet wide - runs generally north and south and intersects East Ohio Street. At this point, East Ohio Street - on the north side of which is the Carnegie Library and on the south side of which is the North Side Market - is generally subject to heavy vehicular traffic but at the time of the accident such vehicular traffic was practically nonexistent.
At 7:00 a.m. on the date of accident appellee, having completed her duties as a waitress in a restaurant, was en route to do some shopping at the North Side Market. At a point approximately five or eight feet west of the pedestrian crosswalk located at the intersection of East Ohio and East Diamond Streets, appellee left the sidewalk on the north side of East Ohio Street and started to cross to the south side of that street. When appellee had traversed approximately 24 feet of East Ohio Street she came to the fourth or most southerly rail and when she "got to the fourth track,
there was a hole there and [her] foot slid in" and she fell, sustaining personal injuries.
Appellee instituted a trespass action in the Court of Common Pleas of Allegheny County against the appellant. In her complaint appellee averred that appellant was negligent in the following respects: (a) in permitting the pavement adjacent to the rail of its track to remain in a sunken condition; (b) in failing to maintain its tracks and right-of-way in a reasonably safe condition for pedestrian traffic; (c) in failing to barricade the rail when appellant knew or should have known of its dangerous condition; (d) in failure to warn of the exposed rail; (e) in disregarding appellee's safety; (f) in failing to exercise due care under the circumstances. After a trial before the Honorable F. G. WEIR and a jury, the jury returned a verdict in favor of appellee and against appellant in the amount of $25,479.40. Appellant's motion for judgment n.o.v. having been refused, judgment was entered on the verdict and this appeal was taken.
The sole question on this appeal is whether, under the facts of record, appellant is entitled to judgment n.o.v. Appellant takes the position that it is entitled to judgment n.o.v. because (1) there was insufficient evidence upon which to predicate a finding of negligence; (2) appellant had neither actual nor constructive notice of the ...