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DOLORES E. PEAIR AND WALLACE L. PEAIR v. HOME ASSOCIATION ENOLA LEGION NO. 751 (05/22/81)

filed: May 22, 1981.

DOLORES E. PEAIR AND WALLACE L. PEAIR
v.
HOME ASSOCIATION OF ENOLA LEGION NO. 751, APPELLANT



No. 381 Philadelphia 1980, APPEAL FROM THE ORDER OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, CIVIL ACTION-LAW AT NO. 3132 of 1978.

COUNSEL

F. Lee Shipman, Harrisburg, for appellant.

Kent H. Patterson, Harrisburg, for appellees.

Spaeth, Hester and Cavanaugh, JJ. Hester, J., files a concurring and dissenting statement.

Author: Spaeth

[ 287 Pa. Super. Page 403]

This is an appeal from a judgment entered on a verdict in a negligence case. The verdict was in favor of appellees, who were plaintiffs below, in the amount of $25,000. The case was tried under the Comparative Negligence Act.*fn1 In response to special interrogatories, the jury found appellant to have been 85 per cent negligent and appellees 15 per cent. The trial judge accordingly molded the verdict to $21,250. Appellant argues that the lower court erred in refusing to grant either its motion for judgment n. o. v. or its motion for new trial. Among the issues presented are issues of first impression under the Comparative Negligence Act. We agree with the lower court's resolution of these issues, and finding no error, shall affirm.

-- The Motion for Judgment N.O.V. --

Appellant first argues that the lower court should have granted its motion for compulsory non-suit and therefore its motion for judgment n. o. v. because, it says, the evidence was insufficient to permit the jury to find that it had been negligent.

A non-suit should be entered only in a clear case. McMillan v. Mountain Laurel Racing Inc., 240 Pa. Super. 248, 367 A.2d 1106 (1976); DiGiannantonio v. Pittsburgh R. Co., 402 Pa. 27, 166 A.2d 28 (1960); Dunmore v. McMillan, 396 Pa. 472, 152 A.2d 708 (1959). In describing how clear the case must be, it has been said that a non-suit can be entered

     only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved.

[ 287 Pa. Super. Page 404]

    sidewalk in front of appellant's building at least three or four times. She explained that she had not walked on the opposite side of Shady Lane because on that side, at least at the corner, there were weeds and other vegetation growing out over the sidewalk, and beer bottles and cans strewn about. This description was documented by photographs. Also, two neighbors testified that the sidewalk in front of appellant's building was broken and uneven, and had been in a deteriorating condition for at least two years before Mrs. Peair fell.

As a property owner, appellant had the duty to keep its sidewalk in a safe condition for travel by the public.

Sidewalks must be maintained that they will not present an unreasonable risk of harm to pedestrians. What constitutes such a condition depends upon all of the circumstances. It may generally be defined as one attended with an unreasonable risk of harm, one that is hazardous or unsafe, or one that constitutes a danger to persons traveling thereon.

Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176 (1963).

See also Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623 (1962); Davis v. Shenandoah Borough, 273 Pa. 501, 117 A. 207 (1922). It was appellees' burden to prove that appellant had failed to keep its sidewalk in a reasonable state of repair. What constitutes a reasonable state of repair is a question for the jury. See Kuntz v. Pittsburgh, 123 Pa. Super. 394, 187 A. 287 (1936). Here, Mrs. Peair's description of the sidewalk, corroborated by the photographs and the descriptions of the neighbors, was sufficient to go to the jury on the issue of whether the sidewalk was in a reasonable state of repair.

It was appellees' burden also to prove that appellant had actual or constructive notice of the state of repair of its sidewalk. Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963). Constructive notice may be proved by evidence of condition itself if that condition is shown to have been evident and in existence for a substantial period of time. Nash v. Atlantic White Tower System, Inc., 404 Pa. 83, 170 A.2d 341 (1961); Davis v. Shenandoah, supra. Here, the

[ 287 Pa. Super. Page 406]

    testimony, especially of the neighbors, was sufficient evidence to go to the jury on ...


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