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.
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
testified that she tripped when she turned her head in mid-step as the result of a sound of an automobile distracting her.*fn2 ...