Opinion
November 13, 1929.
December 12, 1929.
Negligence — Municipality — Sidewalk — Obstructions — Trap — Injury.
In an action of trepass by a husband and wife to recover damages for personal injuries to the latter, the evidence disclosed that she was walking late in the afternoon, upon the portion of a street usually occupied by the sidewalk, and that it was snowing and raining and the street was muddy. She looked ahead but kept her head down in order to keep the snow and rain from blowing in her face. As she proceeded, her foot caught between two meter boxes covered with snow and mud, which were four inches apart and projected between four and six inches above the surface of the ground. As a result thereof, she fell and sustained injury.
Held: The question of contributory negligence was for the jury and a judgment for the plaintiff will be affirmed.
A space of four inches between meter boxes projecting above the surface in a portion of a street usually occupied by a sidewalk, constitutes a dangerous trap into which a person, unfamiliar with its presence, might step, even if he were exercising ordinary care.
Appeals Nos. 99 and 100, April T., 1930, by defendant from judgment of C.P., Allegheny County, October T., 1927, Nos. 473 and 437, in the case of Estella Archer and Clarence Archer v. City of Clairton.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Trespass to recover damages for personal injuries. Before MARTIN, J.
The facts are stated in the following opinion of the court below:
The action is trespass to recover damages for personal injuries to the woman plaintiff sustained through the alleged negligence of the defendant city. The verdict was in favor of the plaintiffs. The only question presented by the defendant's motion for judgment non obstante veredicto is whether the woman plaintiff, who will be referred to hereafter as the plaintiff, is guilty of contributory negligence as a matter of law.
The plaintiff lived in the City of Clairton on an unimproved street without sidewalks. On the afternoon of December 23, 1926, she left her home to visit a neighbor, Mrs. Johnson, who lived on the same street. The plaintiff had never been upon this part of the street prior to that time. In going from her home to the Johnson house, she walked along a cinder path in the center of the street to a point opposite the house and then crossed over to the entrance. At about four o'clock she left the Johnson house to return home. At that time it was getting dark and snow, mixed with rain, was falling. The plaintiff walked upon that part of the street usually occupied by the sidewalk. She was looking ahead but kept her head down to keep the snow and rain from blowing into her face. She walked about twelve feet when her foot caught in a space of four inches between a meter box and a gas box projecting above the surface of the ground, and as a result she fell and sustained a severe injury.
The city had permitted certain public service corporations to maintain four obstructions in close proximity to each other a short distance from the property line of the Johnson house for many years. The largest of these obstructions, a terra cotta pipe eighteen inches in diameter, protected a water meter and was covered by a cast iron top. The inner edge of this pipe was seven inches from the property line of the Johnson property. About four inches from the outer edge of the meter box was a smaller pipe of the type commonly known as a gas box; close to and almost touching the meter box was another gas box, while the fourth obstruction, the third gas box, was one foot seven inches from the outer rim of the meter box. The surface of the ground about these pipes was uneven, and all of them projected above the surface of the ground from four to six inches. This general condition had been present unchanged for many years. The negligence of the defendant city in permitting this condition to exist is too clear for discussion.
Under ordinary circumstances, a plaintiff who fell over obstructions of the size and character described would be guilty of contributory negligence as a matter of law. At first glance the photographs put in evidence seem to indicate contributory negligence of this character. But, they were taken on a clear day and it is well known that darkness comes early on a late December day in this vicinity. The testimony is that while it was not dark, it was getting dark when the accident happened. Moreover, snow mixed with rain was falling, the street was muddy and the boxes themselves were covered with snow and mud. When the uncertain light, the falling rain and snow and the presence of snow and mud covering the pipes are taken into account, it is clear that the plaintiff has presented conditions outside herself which might have prevented her from seeing that which would be perfectly obvious on a clear day. The space of four inches between the meter box and the gas box was a trap. A person, unfamiliar with its presence, might step into it even if he was exercising ordinary care if it was covered with snow and mud and the weather conditions were bad.
We are of the opinion that the contributory negligence of the plaintiff was a question of fact for a jury and not a question of law for the court.
The verdict in this case is not a large one, considering the character of the injury, and we cannot agree with the defendant's contention that it is excessive. No complaint is made as to the manner in which the questions of negligence and contributory negligence were submitted to the jury. The motions for judgment non obstante veredicto and for a new trial will be refused.
Verdicts for Estelle Archer in the sum of $2,200, and Clarence Archer, in the sum of $1,300, and judgments thereon. Defendant appealed.
Error assigned, among others, was the refusal of the defendant's motion for a compulsory nonsuit.
Charles A. Lewis, for appellant.
George S. Goldstein, and with him Norman Gluck, for appellees.
Argued November 13, 1929.
The judgments are affirmed on the opinion filed by Judge MARTIN of the court of common pleas of Allegheny County, in refusing the motion for a new trial.