Opinion
October 22, 1935.
November 13, 1935.
Negligence — Obstruction on sidewalks — Nuisance — Causation — Intervening act of third party.
1. Obstructions placed on the footwalks of the streets of a municipality are a nuisance, and the party responsible therefor is liable to one injured by his illegal act.
2. A pedestrian is required to exercise only reasonable care in walking on the sidewalk.
3. The act of a third person, intervening and contributing to a condition necessary to the injurious effect of the original negligence, does not excuse the wrongdoer if such act should have been foreseen.
4. In an action for injuries sustained by the wife plaintiff when she fell over one of several milk bottle boxes unloaded by defendant's driver on a street sidewalk, the evidence was held sufficient to establish liability of defendant, where it appeared that the boxes had been permitted to remain on the sidewalk for a considerable length of time, and that at the time of the accident the sidewalk was so dark that the boxes were not plainly visible.
Appeals — Review — Evidence — Motion for judgment n.o.v.
5. In considering a motion for judgment n.o.v., the plaintiff is entitled to the benefit of every favorable fact and inference fairly deducible from the testimony.
Appeals, Nos. 338 and 339, Oct. T., 1935, by defendant, from judgments of C.P. No. 2, Phila. Co., June T., 1934, No. 3093, in case of Stanford Anderson et ux. v. Supplee-Wills-Jones Milk Company.
Before KELLER, P.J., BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Judgments affirmed.
Trespass for personal injuries. Before LAMBERTON, J.
The facts are stated in the opinion of the lower court, by ALESSANDRONI, J., as follows:
The wife plaintiff was injured when she fell over one of defendant's milk bottle boxes on the northwest corner of Bonsall Street and Indiana Avenue. A verdict was rendered in favor of both plaintiffs and the motion now before the court raises a legal question as to whether the evidence forms a proper basis for the verdict.
The northwest corner of Bonsall Street and Indiana Avenue is occupied by an Italian grocery store. Fred C. Siegele testified that on November 16, 1933, at approximately 4:20 A.M. he was walking home and passing the corner in question, when he noticed a Supplee-Wills-Jones Company driver unloading milk bottle boxes on Indiana Avenue about 15 or 20 feet from Bonsall Street. About 5:30 or 6 P.M. of the same day he again passed the corner and saw the boxes still there. The boxes were together, having been placed about six inches from the curb in three rows, containing two boxes, two boxes and one box respectively. At about 12:15 A.M. of the morning of November 17, 1933, the wife plaintiff was walking with some members of her family and fell over one of the milk boxes which was standing in front of the others. The respective witnesses testified that the corner was very dark due to the fact that a stand extended out from the houseline about 4 feet, and an awning covered part of the pavement.
Defendant argues that under this testimony a verdict cannot stand against it, as the possibility of an intervening individual agency has not been excluded. In considering a motion for judgment non obstante veredicto the plaintiff is entitled to the benefit of every favorable fact and inference fairly deducible from the testimony: Christ v. The Hill Metal Roofing Co., 314 Pa. 375. In construing the testimony in the light most favorable to the plaintiff the jury would have been justified in assuming that the defendant's driver early on the morning of November 16, 1933, unloaded five milk bottle boxes and left them lying near the curb on the pavement until 12:15 A.M. of the following morning. Such an unwarranted use of the sidewalk constitutes a danger to the public and a nuisance. The defendant company, therefore, became responsible to one injured as the result of its illegal act. As stated in Fougeray et al. v. Pflieger, 314 Pa. 65:
"The sign lying on the pavement where there was evidence that defendant had placed it was a dangerous impediment to travel on the footway. Obstructions placed on the footwalks of the streets of a municipality are a nuisance, and the party responsible therefor is liable to one injured by his illegal act."
Defendant argues, however, that the accident may have been the result of the action of an intervening agency in moving the box in question. However, the defendant should have foreseen that its illegal and negligent act in making an improper use of the public sidewalk could have resulted in injuries to pedestrians. The test in cases of this nature is whether the original, negligent or illegal act was the proximate cause of the injury suffered, even though some other individual may have contributed to the accident.
In Welser v. United Gas Imp. Co., 304 Pa. 227, a similar situation arose. In that case the defendant's employees placed a highly imflammable substance on the sidewalk and set it on fire. A policeman, in an endeavor to put out the fire, kicked over the bucket and injured the plaintiff. Our Supreme Court held the original negligence of the defendant was the proximate cause of the injury and the intervening and contributing act of the policeman should have been foreseen, and did not excuse the defendant. The court stated:
"In Lane v. Atlantic Works, 111 Mass. 136, 139, the Supreme Court of Massachusetts said: `The act of a third person, intervening and contributing to a condition necessary to the injurious effect of the original negligence, will not excuse the wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable, direct cause of the injury.' In Atchison, etc., R.R. Co. v. Stanford, 12 Kan. 354, 377, the Supreme Court of Kansas said: `Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. . . . . .'
"Defendant's employees set in operation a train of events, each one of which was the natural result of the one preceding it, and they were therefore responsible for the final consequences. They knew of the intense inflammability of condensation, and yet they burned it in a city street near a playground where there were boys whom the fire would naturally attract. The policeman acted as he could reasonably have been expected to act to abate the nuisance."
It is, therefore, obvious that even conceding that the box over which the wife plaintiff fell may have been moved during the intervening twenty hours by a third person, the defendant's original negligence still remains the culpable direct cause of the injury. There is no evidence of contributory negligence for a pedestrian is only required to exercise reasonable care, and the evidence in this case clearly discloses that the corner in question was so dark that the boxes were not visible.
And now, to wit, this 9th day of July, 1935, the motion for judgment non obstante veredicto is overruled.
Verdicts, for wife plaintiff in the amount of $1,000 and for husband plaintiff in the amount of $351, and judgments thereon. Defendant appealed. Error assigned, among others, was overruling of motion for judgment n.o.v.
Charles E. Kenworthey, with him Evans, Bayard Frick, for appellant.
Claude O. Lanciano, with him William Charles Brown, for appellees.
Argued October 22, 1935.
The judgments are affirmed on the opinion of Judge ALESSANDRONI.