decided: May 20, 1971.
BAU ET AL., APPELLANTS
Appeal from judgment of Court of Common Pleas of Luzerne County, July T., 1966, No. 579, in case of Margaret Kobi v. Louis Bau and Victoria Bau.
Arthur Silverblatt, with him Charles D. Lemmond, Jr., and James, Harris, Silverblatt & Townsend, for appellants.
Thomas E. Mack, with him Clement E. Kisailus, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Spaulding, and Cercone, JJ. (Hoffman, J., absent). Dissenting Opinion by Montgomery, J.
Author: Per Curiam
[ 218 Pa. Super. Page 139]
Dissenting Opinion by Montgomery, J.:
I respectfully dissent from the affirmance of the judgment for plaintiff-appellee for the reason that I believe that she clearly was contributorily negligent as a matter of law.
In approaching defendants' store on this clear day the plaintiff passed the drop in the sidewalk which she alleged caused her to fall as she left the store and retraced
[ 218 Pa. Super. Page 140]
her steps to her parked automobile. She was unencumbered and gave as her only reason for not seeing the break in the sidewalk that a four-inch overhang of the building obscured her view of the defect. The record, including the pictures offered as exhibits, demonstrates that this overhang of about four inches beyond the foundation of the building had the effect of compelling plaintiff to walk farther away from the drop in the sidewalk, protecting her rather than increasing any existing hazard. In no way did it interfere with her view of the lower unpaved sidewalk.
On the authority of Kresovich v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585 (1970), this judgment should be reversed and entered for the defendants.
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