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TOLBERT v. GILLETTE (01/09/70)

decided: January 9, 1970.

TOLBERT, APPELLANT,
v.
GILLETTE



Appeal from judgment of Court of Common Pleas of York County, Oct. T., 1965, No. 74, in case of Charlotte M. Tolbert v. Leon E. Gillette et al.

COUNSEL

R. L. Lerman, with him Lewis H. Markowitz, Samuel F. Meisenhelder, and Markowitz, Kagen & Griffith, for appellant.

Frank B. Boyle, for appellees.

Raymond L. Hovis, with him Stock & Leader, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts concurs in the result.

Author: Bell

[ 438 Pa. Page 64]

This is an appeal from a judgment of non-suit.

[ 438 Pa. Page 65]

On January 12, 1964, plaintiff alighted from an automobile, stepped from the car onto defendant's sidewalk, slipped, fell and sustained the injuries for which she brought this suit. A light snow had been falling and the brick sidewalk was covered to a depth of one to two inches.

It is hornbook law that a judgment of non-suit can be entered only in clear cases, and before it may be entered the plaintiff must be given the benefit of all evidence favorable to her and all reasonable inferences of fact arising therefrom; and all conflicts in the evidence must be resolved in her favor. Engle v. Spino, 425 Pa. 254, 228 A.2d 745; Semet v. Andorra Nurseries, Inc., 421 Pa. 484, 219 A.2d 357; Lascoskie v. Berks County Trust Company, 417 Pa. 53, 208 A.2d 463.

In cases involving sidewalk accidents in inclement weather, plaintiff cannot recover merely by proving that her fall was caused by a generally slippery condition. Puskarich v. Trustees of Zembo Temple, 412 Pa. 313, 194 A.2d 208; Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623.

Plaintiff attempted to show that her fall had been caused by an isolated patch of ice formed when an overhead drainspout discharged water which then collected on the uneven surface of the sidewalk and froze. To prove this, plaintiff (1) offered photographs of the brick sidewalk taken some 8 months after the accident; (2) offered to prove that the uneven condition of the sidewalk shown in the photographs had existed prior to and at the time of the accident; and (3) offered to prove by the testimony of an architect and an engineer that the drainspout was "capable" of causing water to drip and, if it dripped, the grade ...


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