decided: November 19, 1970.
LANG ET VIR, APPELLANTS,
Appeal from judgment of Court of Common Pleas of Butler County, Sept. T., 1968, No. 107, in case of Mary L. Lang and Ralph A. Lang v. The City of Butler, Edward Friedman, trustee under the will of Jacob Friedman, deceased, Nick Lustig and Jerome Lustig, t/d/b/a Outdoor Army Store.
William J. Rockenstein, for appellants.
Lee A. Montgomery, with him Galbreath, Braham, Gregg, Kirkpatrick, Jaffe & Montgomery, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts dissents for the reasons noted in his dissenting Opinions in Cerino v. Philadelphia,
[ 441 Pa. Page 332]
This is an appeal from a summary judgment entered by the Court of Common Pleas of Butler County.
Mary Lang and Ralph Lang, her husband, instituted an action of trespass against The City of Butler, Edward Friedman, Trustee Under the Will of Jacob Friedman, Deceased, and Nick Lustig and Jerome Lustig, t/d/b/a Outdoor Army Store, to recover for personal injuries sustained by Mary Lang and for expenses incurred by Ralph Lang, as well as for the loss of consortium, resulting from the injuries to Mary Lang. Defendants took a deposition of plaintiff, Mary Lang, and on the basis of the pleadings and this deposition the Court below granted defendants' motion for summary judgment pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure.*fn*
[ 441 Pa. Page 333]
According to Mrs. Lang's deposition, the facts or circumstances which caused her injuries were as follows: On July 21, 1966, at approximately 2:30 P.M., Mrs. Lang fell and was injured when she caught the heel of her shoe in a crack in the blacktop sidewalk in front of the Outdoor Army Store in the City of Butler. The crack was described as being one inch wide, one inch deep and six to seven inches long. There were a total of three cracks in the sidewalk.*fn** It was a bright, sunny day and there was neither pedestrian nor vehicular traffic in the area, nor were there any obstructions or distractions to prevent Mrs. Lang from keeping her attention on where she was walking or from seeing the defect.**fn** The lower Court held that plaintiff was guilty of contributory negligence as a matter of law. We agree. See Beil v. Allentown, 434 Pa. 10, 252 A.2d 692; Knapp v. Bradford City, 432 Pa. 172, 247 A.2d 575; Cerino v. Philadelphia, 435 Pa. 355, 257 A.2d 571.