Appeal from judgment of Court of Common Pleas of Luzerne County, Jan. T., 1972, No. 1010, in case of Anna C. Bacsick and Michael Bacsick v. Donald Barnes and Genetti's Supermarkets, Inc., and City of Hazleton, additional defendant.
James S. Palermo, for appellants.
Anthony J. Ciotola, with him Louis G. Feldmann, and Feldmann and Ciotola, for Donald Barnes, appellee.
B. Todd Maguire, with him Harris, Johnston & Maguire, for Genetti's Supermarkets, Inc., appellee.
James F. Geddes, Jr., for City of Hazleton, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Cercone, J., concurs in the result.
[ 234 Pa. Super. Page 619]
Appellants contend that the lower court erred in granting judgment n.o.v. in favor of appellees Genetti's Supermarkets, Inc., and the City of Hazleton. In addition, appellants ask that a new trial be granted on the issue of damages only.
On Tuesday, January 13, 1970, at approximately 7 p.m., appellant Anna Bacsick left her home, at 710 Roosevelt Street in Hazleton, to take a bundle of laundry to a laundromat located behind Genetti's Supermarket on Fifteenth Street. About 12 to 15 inches of snow had fallen approximately two days earlier. Although some property owners had cleared paths along the sidewalks for pedestrians, others had not, and Mrs. Bacsick was forced to walk in the street. As a result of the snowfall and the plowing of Fifteenth Street by state and city highway crews, a bank of snow approximately three feet high had been deposited along the roadward edge of the sidewalk in front of the property owned by appellee Genetti's. When Mrs. Bacsick reached the intersection of Fifteenth and Roosevelt Streets, near Genetti's Supermarket, she was forced to walk in the street, in a path
[ 234 Pa. Super. Page 620]
or ledge in the snow which had been used by pedestrians, approximately one foot out from the sidewalk, because the sidewalk had been made inaccessible by the snow bank. While walking along this path, Mrs. Bacsick was struck by a car being driven by appellee Donald Barnes. At trial, there was a conflict of testimony as to whether Barnes, who was driving at approximately eight to ten miles per hour, struck Mrs. Bacsick, or whether Mrs. Bacsick slipped and fell into the path of his car. As a result of the accident, Mrs. Bacsick suffered a fractured right femur and had to spend ten weeks with her leg in traction; she also suffered a permanent shortening of her right leg by three-eighths of an inch.
Appellants, Mr. and Mrs. Bacsick, brought suit against Barnes, the driver of the car which struck Mrs. Bacsick, and Genetti's Supermarkets, the owner of the property adjoining the point where the accident occurred. Barnes joined appellee, the City of Hazleton as an additional defendant.*fn1 The jury, by special verdict, found Mrs. Bacsick free of contributory negligence and Barnes free of negligence. The jury found that appellees Genetti's Supermarket and the City of Hazleton had been negligent, and awarded damages of $5,000 to Mr. Bacsick and $18,500 to Mrs. Bacsick, broken down to include $1,000 for pain and suffering, $16,500 for lost earnings, and $1,000 for permanent disfigurement. Appellees Genetti's Supermarket ...