Opinion
May 18, 1971.
May 20, 1971.
Negligence — Contributory — Pedestrian — Sidewalk defect.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, SPAULDING, and CERCONE, JJ. (HOFFMAN, J., absent).
Appeal, No. 1806, Oct. T., 1970, from judgment of Court of Common Pleas of Luzerne County, July T., 1966, No. 579, in case of Margaret Kobi v. Louis Bau and Victoria Bau. Judgment affirmed.
Trespass for personal injuries. Before SCHIFFMAN, J.
Verdict for plaintiff and judgment entered thereon. Defendants appealed.
Arthur Silverblatt, with him Charles D. Lemmond, Jr., and James, Harris, Silverblatt Townsend, for appellants.
Thomas E. Mack, with him Clement E. Kisailus, for appellee.
MONTGOMERY, J., filed a dissenting opinion.
Argued: May 18, 1971.
Judgment affirmed.
I respectfully dissent from the affirmance of the judgment for plaintiff-appellee for the reason that I believe that she clearly was contributorily negligent as a matter of law.
In approaching defendants' store on this clear day the plaintiff passed the drop in the sidewalk which she alleged caused her to fall as she left the store and retraced her steps to her parked automobile. She was unencumbered and gave as her only reason for not seeing the break in the sidewalk that a four-inch overhang of the building obscured her view of the defect. The record, including the pictures offered as exhibits, demonstrates that this overhang of about four inches beyond the foundation of the building had the effect of compelling plaintiff to walk farther away from the drop in the sidewalk, protecting her rather than increasing any existing hazard. In no way did it interfere with her view of the lower unpaved sidewalk.
On the authority of Kresovich v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585 (1970), this judgment should be reversed and entered for the defendants.