Appeals from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1970, No. 358, in case of Frank Niemiec v. Port Authority of Allegheny County, original defendant and City of Pittsburgh, additional defendant.
R. Audrachi, with him Con F. McGregor, and McGregor, Dunn & Holland, for Port Authority of Allegheny County, appellant.
Thomas S. White, Assistant City Solicitor, with him Ralph Lynch, Jr., City Solicitor, for City of Pittsburgh, appellant.
Raymond Radakovich, with him Alan Frank, for appellee.
Wright, P. J., Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. (Watkins, J., absent.) Opinion by Packel, J. Wright, P. J., dissents.
Author: PACKEL; Per Curiam
[ 223 Pa. Super. Page 437]
The appellee disregarded a posted notice, "Bridge Closed to all Pedestrians ", just as he and many others had done almost daily for ten years. Only this time the appellee did not reach the other side. He fell thirty-five feet through the public walkway when he stepped over a hole created by a missing board onto a rotten or loose board.
The appellee sued the Port Authority, the owner of the trolley bridge, for the injuries resulting from his fall. The Port Authority then joined the City as an additional defendant, claiming that it was solely liable because it had contracted with the Port Authority to use and maintain the walkway as a public throughway. The jury returned a verdict for the appellee in the amount of $8,900 against both appellants. Both appellants sought judgment n.o.v. on the ground that the appellee was contributorily negligent as a matter of law. They are appealing the denial of this motion. Appellant Port Authority is also appealing the judge's refusal
[ 223 Pa. Super. Page 438]
to charge the jury on the City's liability over to the Port Authority.
The burden on the appellants, seeking to overturn a jury verdict is great. "[I]n considering a motion for entry of judgment against the verdict winner, the latter is entitled to the benefit of every favorable fact and inference fairly deducible therefrom." Holton v. Gibson, 402 Pa. 37, 42, 166 A.2d 4, 7 (1960). The burden is increased because ". . . contributory negligence as a matter of law should be declared only in a very clear case and only where the evidence of such is so clear and palpable that there is no room for fair and sensible men to differ in their conclusions as to its existence." Dougherty v. Philadelphia Nat'l Bank, 408 Pa. 342, 344, 184 A.2d 238, 239 (1962).
The question the jury was called upon to decide was whether a reasonable man under all the attendant circumstances would have used the walkway. The appellee, a sixty-five year old man, was aware that the trolley bridge was in need of repair from time to time. He and others had called the Port Authority on occasion to have repairs made. Appellee had replaced two missing boards on the walkway earlier that day during a previous trip across the bridge. The appellee used the bridge almost daily as did many others but he did not use the bridge when barricades were up. When the appellee did use the bridge he used care to avoid the holes, but he did not expect boards to give out underneath him. There was testimony that the condition of the boards was not readily visible to a passerby.
Although the sign had been up for many years, the City had not taken any permanent precautions to prevent public use of the bridge. City personnel were aware that the barricades which were erected were torn ...