decided: April 4, 1973.
BULLICK ET VIR, APPELLANTS,
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.
Author: Per Curiam
[ 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 argument before the court en banc, the lower court granted appellee's
[ 224 Pa. Super. Page 175]
motion holding that ". . . the defect in the case here presented is not of the magnitude or shape constituting more than a break in the surface of the street paving . . .", and therefore was not sufficient evidence of actionable negligence. This appeal followed.
In Pennsylvania, what constitutes a defect sufficient to render a city liable for a fall in its street must be determined by examining many relevant factors, and except where the defect is obviously trivial, that question must be submitted to the jury. Aloia v. City of Washington, 361 Pa. 620, 65 A.2d 685 (1949). As this Court expressed it, "[t]he extent of irregularity which may be present in a street without convicting a municipality of negligence in its maintenance varies with other circumstances such as amount of travel, actual location of the rise or depression, character of material with which the pavement is constructed, nature of the irregularity and other circumstances." Kuntz v. Pittsburgh, 123 Pa. Superior Ct. 394, 399-400, 187 A. 287 (1936).
From a review of the record, there appears to be that quantum of evidence and coexistence of circumstances to remove it from that vague group of cases wherein our courts have held the defect to be "obviously trivial". See Bosack v. Pittsburgh Rwys. Co., 410 Pa. 558, 189 A.2d 877 (1963); Koch v. White Haven Borough, 360 Pa. 627, 63 A.2d 1 (1949); Harrison v. Pittsburgh, 353 Pa. 22, 44 A.2d 273 (1945); Foster v. West View Borough, 328 Pa. 368, 195 A. 82 (1937).
In the instant case, the concomitance of the lack of a sidewalk, the nature of the traffic coming around the bend from another street, the existence of parked cars alongside the curb of a church, and the dimensions of the hole, would create on the day in question the particular condition which our courts have referred to as the "shadow zone" where such questions must be submitted to the jury. As Justice Musmanno said in
[ 224 Pa. Super. Page 176]
supra, our Supreme Court reaffirmed this belief, saying: "And then, even if the plaintiff had been aware of the defective condition of the roadway at the telltale intersection, this in itself, would not make him guilty of contributory negligence as a matter of law."
For the above stated reasons, I dissent from the conclusion of the majority and would reverse the judgment for defendant non obstante veredicto and reinstate the jury verdict.
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