decided: November 12, 1968.
BRADFORD CITY, APPELLANT
Appeal from judgment of Court of Common Pleas of McKean County, June T., 1966, No. 325, in case of Jack L. Knapp et ux. v. City of Bradford et al.
Robert J. Healy, for City of Bradford, appellant.
R. T. Mutzabaugh, with him Mutzabaugh and Mutzabaugh, for appellees.
Murray R. Garber, for appellee.
Ronald H. Heck, with him Bagley, Sydor & Heck, for appellee.
Henry Graff, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts dissents. Mr. Justice Musmanno did not participate in the decision of this case.
[ 432 Pa. Page 173]
The plaintiff Mrs. Knapp recovered in the instant personal injury case as the result of her fall after catching her heel on a protruding curb in the City of Bradford (City). The top of the curb extended 1 3/8" above the level of the adjacent sidewalk as a result of "settling" conditions after City had replaced the curb and relaid the brick sidewalk. On the day of the occurrence, Mrs. Knapp was walking on the sidewalk and after waiting for three cars to pass attempted to cross the street. Upon being distracted by hearing a fourth car (previously unobserved) she caught her heel on the curb and fell into the street causing the injury for which the jury gave her this verdict. Her husband recovered medical expenses and loss of consortium predicated on her recovery. City was found solely liable and now appeals from the failure of the trial court to grant motions for judgment n.o.v. and for a new trial.
City contends that Mrs. Knapp was guilty of contributory negligence as a matter of law and hence its n.o.v. should have been granted. We agree and therefore reverse.
Mrs. Knapp's own testimony indicates not only that this "defect" was an open and obvious danger, but also that she observed it on the day in question.*fn1 She further
[ 432 Pa. Page 174]
testified that she tripped when she turned her head in mid-step as the result of a sound of an automobile distracting her.*fn2 Her own testimony precludes her recovery.
[ 432 Pa. Page 175]
"[O]ne who fails to observe a dangerous condition plainly visible and nevertheless proceeds without regard to his own safety must be held guilty of contributory negligence as a matter of law", Miller v. Exeter Borough, 366 Pa. 336, 77 A.2d 395 (1951). It follows that one who sees such a defect and continues on is likewise contributorily negligent. Plaintiff relies on the long standing corollary of this rule: "One who, in broad daylight, walks into an obvious defect in a sidewalk is presumptively negligent and the burden is upon that person to show conditions outside of himself which prevented his seeing the defect, or which would excuse failure to observe it. McDonald v. Mars Borough, 371 Pa. 625, 92 A.2d 199; Leson v. Pittsburgh, 353 Pa. 207, 44 A.2d 577; Lerner v. Philadelphia, 221 Pa. 294, 70 A. 755. . . ." Walsh v. Philadelphia, 175 Pa. Superior Ct. 622, 106 A.2d 851 (1954). She contends that she has met this burden by showing that the sound of the automobile distracted her attention. In this she relies on Pro v. Pennsylvania Railroad Company, 390 Pa. 437, 135 A.2d 920 (1957); Sculley v. Philadelphia, 381 Pa. 1, 112 A.2d 321 (1955); Sandherr Page 175} v. Pottsville, 201 Pa. Superior Ct. 547, 193 A.2d 625 (1963). In the cited cases and in every other case the distraction was such that plaintiff was prevented from observing the obvious defect by the distraction. Plaintiff points out no case in which this exception has been extended to one who has already observed the defective condition. To extend the exception so far would be to defeat the "open and obvious danger" rule altogether. Plaintiff saw the danger and failed to heed it.
Furthermore, even if Mrs. Knapp had not observed the curb this is not the type of distraction which could excuse her failure to do so. The sound of automobiles is hardly an uncommon occurrence in urban America. City inhabitants are required to have the ability to look where they are going while remaining conscious of their other surroundings. Their attention should not be diverted by the ordinary sounds of city traffic. In this instance there is nothing so removed from the ordinary to legally constitute a distraction.*fn3
Plaintiff does not contend that this noise created a sudden emergency or peril which caused her to step involuntarily into the defect, Fisher v. City of Philadelphia, 112 Pa. Superior Ct. 226, 170 Atl. 875 (1934); Dunfee v. City of Philadelphia, 97 Pa. Superior Ct. 413 (1929). This seldom used doctrine mentioned by the court below is inapplicable since plaintiff did not testify that the approaching car presented a danger in any way. The sound of an automobile riding along a busy street can hardly be reason for peril in this day and age. Regardless of the viability of the doctrine of "emergency or peril", plaintiff has failed to place herself within it.
For these reasons the court below erred in submitting the question of contributory negligence to the jury
[ 432 Pa. Page 176]
and should have granted the n.o.v. in favor of the defendant City.
Because of our disposition of this case we are not required to reach appellant's contention that City was not negligent and we voice no opinion on City's negligence.
Judgment reversed and judgment n.o.v. entered for defendant.