Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1961, No. 2640, in case of Beatrice Teagle and Samuel Teagle, her husband v. City of Philadelphia.
John M. McNally, Jr., Deputy City Solicitor, with him Mansfield C. Neal, Assistant City Solicitor, Matthew W. Bullock, Jr., Second Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellant.
John Davidian, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Roberts concurs in the result. Mr. Justice Jones dissents. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice O'Brien.
A few minutes before midnight on July 2, 1961, Mrs. Beatrice Teagle, plaintiff here, while crossing Leland Street in Philadelphia, stepped into a hole in the street and sustained injuries. At the trial of the lawsuit instituted against the City of Philadelphia by the plaintiff, she testified that the hole into which she fell was 36 inches long, 2 feet wide, from 4 to 5 inches deep and was filled with black water. She explained that she could tell the depth of the hole by the wet mark on her stocking.
A Mrs. Dorothy Gross testified that on the night in question she was in her home, she heard a scream and ran out to the street where she saw two persons helping Mrs. Teagle out of the hole in which her foot was immersed. Mrs. Gross knew this defect in the pavement since she had reported it to the city authorities a year before.
The jury returned a verdict for the plaintiff and the defendant asks for judgment n.o.v. or a new trial "at least." Reason? A photograph of the offending hole introduced at the trial inexplicably showed a ruler stuck into it, its measuring indicating the surface of the fortuitous pond to be 1 1/2 inches above the supposed bottom. No one explained who inserted the ruler, no one testified as to whether the measuring rod was punched into the deepest part of the crater, its shallowest part, or somewhere in between. The photographer who took the picture was not called as a witness.
The defendant claims that the city should not be liable for a trivial depression in its public thoroughfares. The courts have not declared what absolute minimum depth is required in a fissure in the street to establish negligence on the part of the municipality for allowing it to remain unrepaired. Nor can there be a judicial pronouncement on the subject because obviously negligence invariably depends on a number of concatenating circumstances.
The defendant argues that the measure appearing on the ruler in the photograph "must be accepted as conclusive evidence of the true depth." This is an argument of less depth than that measured on the ruler. As already stated, the ruler does not specify that the depth of the concavity was uniform throughout its length of 36 inches and its breadth of 2 feet, nor that it was at the precise point where the ruler stood guard that Mrs. Teagle's foot disappeared into the murky hollow.
In addition, photographs cannot be said always to be an undeviatingly accurate reproduction of the scenes they presumably depict. It is said that figures do not lie, but that liars can figure. It can also be said that while photographs do not lie, there can ...