Appeal from order of Court of Common Pleas of Lehigh County, June T., 1961, No. 292, in case of Marie Beil v. City of Allentown et al.
Edward N. Cahn, for appellant.
Richard F. Stevens, with him Harold Caplan, Richard C. Buss, and Butz, Hudders & Tallman, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones dissents. Dissenting Opinion by Mr. Justice Roberts.
This is an appeal from the order of the Court of Common Pleas of Lehigh County, refusing to remove a non-suit. Appellant, Marie Beil, tripped and fell, and allegedly suffered serious injuries on January 4, 1961, as she was returning from her lunch hour to her place of employment. She was walking in an eastwardly direction on the sidewalk on the south side of Washington Street in Allentown. When she reached a point
near the southwest corner of Washington Street and Meadow Street, she stepped from the sidewalk onto a concrete cover over a sewer. This concrete cover lay between the sidewalk on the south and the curb on the north. Sidewalk also lay to the east of the concrete cover, while there existed a grassy strip to the west. The concrete cover was similar to the concrete finish of the sidewalk.
Appellant brought suit against the City of Allentown and the adjoining property owners, alleging that their failure to correct a difference in elevation in excess of an inch and a half between the sidewalk and the concrete cover was the cause of her fall and injuries. One mistrial, various amendments, and appellant's illness have slowed the proceedings considerably. In the second trial, at the conclusion of the plaintiff's case, appellees moved for a compulsory non-suit, and their motion was granted. The court below refused to remove the non-suit, and this appeal followed.
The court below based the non-suit on two grounds: (1) as a matter of law, no defect existed; (2) as a matter of law, the plaintiff was contributorily negligent. Since we agree with the court below that appellant was contributorily negligent, we need not consider the alternative ground relied upon below.
Appellant's testimony showed that she stepped with her left foot onto the sewer cover, then twisted her head and body around to look west up Washington Street to see if any traffic was coming. Still turned partly around, she took another step on the sewer cover with her right foot and then about a half step with her left when she fell. The Pennsylvania cases clearly hold that such conduct constitutes contributory negligence. 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 (1952); Leson v. Pittsburgh, 353 Pa. 207, 44 A.2d 577 (1945); Lerner v. City of Philadelphia, 221 Pa. 294, 70 Atl. 755 (1908); Walsh v. Phila., 175 Pa. Superior Ct. 622, 106 A.2d 851 (1954). Appellant has failed to show any external conditions which prevented her seeing the defect or which would excuse her failure. The observation of traffic conditions was not a condition external to appellant. In Allshouse v. Wilkinsburg Boro., 343 Pa. 323, 324, 22 A.2d 756 (1941), this Court held that plaintiff "was bound to see what was plainly before him and similarity of color of the sections of the sidewalk and observation of traffic conditions in a highway which he was approaching could not excuse him." Appellant's reliance upon Sculley v. Philadelphia, 381 Pa. 1, 112 A.2d 321 (1955), is misplaced. In that case we affirmed a verdict for the plaintiff who had tripped over a hole in the street. In reply to the defendant's contention that plaintiff was contributorily negligent as a matter of law for not having her eyes fixed upon her path, we stated: "A pedestrian is not required to keep his vision fixed continually on the ground immediately in front of him to discover possible points of danger, especially where his attention must also be directed toward the imminent peril of an approaching vehicle. . . . In traversing a cartway, the law imposes a dual duty on the pedestrian of ...