Appeals from order of Court of Common Pleas of Westmoreland County, July T., 1963, No. 330, in case of Stella Imbrescia et vir v. Authority of Borough of Charleroi et al.
B. Patrick Costello, with him Blair A. Griffith, and Smith, Best, Williams, Costello & Snyder, for appellants.
Orlando N. Prosperi, with him Gilfert M. Mihalich, for appellees.
Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent). Opinion by Montgomery, J.
[ 211 Pa. Super. Page 372]
This was an action of trespass by Stella Imbrescia and her husband to recover for injuries received by the wife-plaintiff when she fell on a water box cover, or round iron lid, in the crossway of the street in the City of Monessen, Westmoreland County, Pennsylvania. The
[ 211 Pa. Super. Page 373]
City of Monessen and the Authority of the Borough of Charleroi, owner of the water box cover, were joined as defendants.
After a five-day trial the jury returned a verdict for defendants, and on each of the verdict slips stated, "This was a mere accident in which there was no negligence."
The court en banc, in an opinion by President Judge Weiss, concurred in by Judge Rial, the trial Judge Sculco dissenting, granted a new trial on a point not raised in the briefs or oral argument. The sole basis for granting a new trial was that certain questions asked, and answers given by the jury, "showed a fundamental lack of understanding" by the jury of the issues involved, in that they "did not know that verdicts could properly be rendered on behalf of defendants." The jury first inquired whether the city had a law as to the height and depth of water caps in relation to the street level to which the court gave a proper reply. After five hours of deliberation the jury presented two additional questions, (1) "Can there be a decision where no one is negligent or liable?", and (2) "How do we rule if this is the case?" The trial judge answered the first question in the affirmative, and on the second stated, "the mere happening of an accident does not entitle a person to a verdict in his or her favor", adding, "If you find that there is no negligence, you must find for the defendants."
The accident took place in daylight, about 11 a.m., the morning of October 21, 1961. Plaintiff Stella Imbrescia testified she started to walk across Knox Avenue on the west side of Sixth Street. She walked to her left to avoid some dark-looking debris. As she put her left foot down she felt a slight skid and raised the left foot to avoid the skid. When she again put her left foot down she stepped on an eight inch in diameter, round water box cover or lid that was depressed and
[ 211 Pa. Super. Page 374]
worn smooth. She was thrown forward onto the street, fracturing her left knee, with resultant aggravation of a rare blood disease. After her fall she discovered bits of rind on her heel about the size of the top of a pencil eraser. According to her estimates, the outer rim of the box cover was an inch ...