Appeal from judgment of Court of Common Pleas of Lackawanna County, May T., 1970, No. 780, in case of Elizabeth Bullick, wife-plaintiff, and Theodore Bullick, husband-plaintiff v. City of Scranton.
James Scanlon, Jr., for appellants.
David J. Reedy, Jr., for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
[ 224 Pa. Super. Page 174]
Dissenting Opinion by Hoffman, J.:
The question in this appeal is whether the lower court erred in granting a judgment non obstante veredicto on the ground that the appellants had not proven actionable negligence with sufficient evidence to support the jury's verdict.
The wife-appellant was injured on May 12, 1968, at about 12:30 p.m., when she fell in the two hundred block of South Fillmore Avenue in the City of Scranton. Appellant had come to attend a Mother's Day breakfast at the St. Peter & Paul Russian Orthodox Church, which is located at the southeast corner of Academy Street and South Fillmore Avenue. Appellant attempted to enter the church, but found the front door to be locked. She then proceeded to the rear entrance by way of Fillmore Avenue. There was no sidewalk upon which to walk. Since it had recently rained and appellant believed the grass to be slippery, she walked on the street instead of inside a line of parked cars on Fillmore Avenue. As appellant was walking along the street, she constantly turned her head to the right and the left to observe the approach of oncoming traffic. While in the process of making these precautionary observations, she failed to notice a hole in the road and fell as her foot hit the depression. The hole was described as being 3 feet long, 1 inch wide, and 1/2 inch in depth.
Suit was instituted against the City of Scranton, and at the conclusion of the case, the jury returned a verdict in favor of the wife-appellant for $1,000.00 and for the husband-appellant for $2,000.00. Appellee filed a timely motion for judgment n.o.v. and after ...