Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1962, No. 3099, in case of Walter W. Dean v. County of Allegheny et al.
John R. Walters, Jr., with him Herbert Grigsby, and Pringle, Bredin, Thomson, Rhodes & Grigsby, for appellant.
Thomas Hollander, with him Evans, Ivory & Evans, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J. Dissenting Opinion by Montgomery, J. Wright, J., joins in this dissenting opinion.
[ 209 Pa. Super. Page 311]
This is an appeal by the County from the judgment of the Court of Common Pleas of Allegheny County entered on a jury verdict in favor of Walter W. Dean, the plaintiff-appellee, and against the County of Allegheny and Steel City Refrigeration Company, the defendants, in the amount of $5000; and from the denial of motions for judgment n.o.v. and for a new trial.
On March 19, 1962, the appellee, an experienced skater, paid admission, rented skates, and entered the outdoor ice skating rink located in Allegheny County's South Park. The rink was owned and operated by the county. He began to skate and struck a soft spot in the ice which caused him to fall "quick" and "hard". He stated that "the soft spot in the ice caused me to
[ 209 Pa. Super. Page 312]
fall". As he pulled himself up he felt the "soft, mushy, wet" spot in the ice. His hand and knee sank into it. As a result of the fall he fractured his right arm and dislocated his right shoulder.
There was no barrier or warning concerning the alleged defect in the ice. One of the witnesses testified that ever since the rink opened a defect existed in the ice-making machinery which caused repeated recurrence of soft spots in the skating surface. It had not been corrected. This was especially evident in the spring months. At times, skating sessions were cancelled because such a large area was affected.
There was conflicting testimony as to the exact location of the soft spot that caused the appellee to fall. The appellee testified that when he entered the rink he began skating to his right and had proceeded fifteen to twenty feet when he fell. Another witness testified that the soft spot was approximately twenty-five feet from where the skaters go on the ice. The ice foreman of the rink testified that it was forty-one feet from the edge of the rink. The court below succinctly stated the issue as follows:
"Stated briefly, the plaintiff's case is that he fell on soft ice in an area of the rink which had a past history of being soft at certain times. The evidence submitted by the plaintiff supports his claim. In an attempt to disprove the allegations and proof offered by the plaintiff, the defendant offered testimony from Mr. Verno that the ice would only get soft when the temperatures rose substantially higher than they did on the day of the accident; that the recorded temperature of the brine was very low on March 9, 1962, indicating the ice was very hard; and that the accident happened after many skaters had shaved the ice with their ...