Summary
In Boyd v. Kensington Water Co., 316 Pa. 522, 175 A. 395, a woman tripped over a water box raised five or six inches above the ground or grass plot between the curb and the sidewalk, which latter was only three feet seven inches wide, and the Supreme Court upheld judgment for the defendant notwithstanding the verdict for the plaintiff.
Summary of this case from German v. McKeesport CityOpinion
October 1, 1934.
November 26, 1934.
Negligence — Contributory — Sidewalks — Area between curb and pavement — Water boxes — Choice of courses — Duty to look.
1. A pedestrian is required, in leaving the paved portion of a sidewalk, to exercise a higher measure of care than while walking on the pavement. [525]
2. In a suit against a borough for injuries sustained by tripping over water boxes maintained in a grass plot between the sidewalk and the street, judgment for defendant n. o. v. is properly entered where it appears that the accident happened at night and that plaintiff, rejecting an almost equally direct and lighted course, did not look where she was going. [523-5]
3. In such case, it is the duty of the pedestrian to look where he is walking, and if he could have seen and yet did not look and stumbled over some boxes, his own negligence, in failing to look, will bar recovery. [525]
4. One who voluntarily rejects a well lighted course, equally convenient and free from danger, and chooses to walk where it is too dark to see, is guilty of contributory negligence as a matter of law. [525]
Municipal corporations — Boroughs — Sidewalks — Maintenance of grass plot along pavement.
5. A borough has the right to maintain a grass plot alongside a pavement between the pavement and the curb. [523]
Argued October 1, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeals, Nos. 119 and 177, March T., 1934, by plaintiffs, from order of C. P. Westmoreland Co., Feb. T., 1932, No. 587, entering judgments for defendant n. o. v., in cases of Maude Boyd v. Kensington Water Company, and R. R. Boyd v. Kensington Water Company. Judgments affirmed.
Trespass for personal injuries. Before WHITTEN, J.
The opinion of the Supreme Court states the facts.
Verdict for wife plaintiff in amount of $3,500, and for husband plaintiff in amount of $1,500. Judgments entered for defendant n. o. v. Plaintiffs appealed.
Errors assigned were judgments, quoting record.
Fred B. Trescher, of Kunkle, Walthour Trescher, with him Donald Laird Hankey, for appellants.
Robert W. Smith, Jr., of Smith, Best Horn, for appellee.
These appeals are from judgments for defendant notwithstanding verdicts for the plaintiffs. The wife-plaintiff was injured at about eleven o'clock at night, October 18, 1930, by tripping over what, in the statement of claim, are called water boxes, located a few inches apart, and described in the evidence as iron structures about five inches in diameter and five or six inches high. The statement averred that they were maintained by defendant "on the easterly side of said Freeport Street between the curb and the sidewalk," and that "it was so dark that the plaintiff could not see, and did not see, the water boxes projecting from the ground." The sidewalk consisted of a concrete pavement three feet seven inches wide; between it and the curb was a grass plot two feet wide, maintained at a lower level than the paved portion of the sidewalk; Mrs. Boyd testified that it was about an inch and a half below the level of the pavement. The borough had the right to maintain the grass plot alongside the sidewalk pavement: Guinter v. Williamsport, 208 Pa. 587, 57 A. 1064; Martin v. Williamsport, 208 Pa. 590, 57 A. 1063.
Plaintiffs lived in a twin house, each occupant having a frontage of 17 feet. In front of the house was a porch extending the full frontage, with three steps leading down to the sidewalk at each end furnishing access directly to the paved sidewalk. The portion of the house occupied by the plaintiff was at the corner of Freeport Street and an alley, roughly twelve feet wide, and the steps leading from her porch were at the alley end of the house. The street was paved with macadam. At the intersection of the alley and Freeport Street, on a pole eighteen feet high, and twenty-three feet from plaintiff's house, was a 1500 candlepower electric light, which was illuminated on the night in question. On the opposite side of Freeport Street, twenty-four and one-half feet wide, slightly to the west of the house, and at a distance of about seventy feet from plaintiff's porch steps, was another electric light, also illuminated. In front of the portion of the house occupied by plaintiff was a maple tree, the trunk of which cast its shadow over the water boxes. The distance from the tree to the nearest water box was two feet.
The plaintiff desired to go from her house to an automobile standing on the opposite side of Freeport Street. As she came out of her front door and descended the steps to the sidewalk, she had the benefit of the electric light on her left at the corner of the alley, and of the electric light on her right on the opposite side of the street. If she had continued into the street by a direct instead of a slightly diagonal course, she would have had a lighted way into the street that, it is conceded, was perfectly safe. Instead of walking directly to the street on the lighted way, she turned slightly to the right, and left the sidewalk pavement by a course which was darkened by shadows of the tree. She stumbled over the water boxes and was injured. In view of the verdict we assume defendant was negligent.
She testified that she had lived in the house one year and that she did not know the water boxes were in front of her house, though they had been there all that time. She was not asked whether she looked where she was walking. She was asked whether she saw what she fell over, and she said she did not see them until after she was injured, when she saw them clearly. Asked why she did not see them as she approached, she said they were "in the shadow of the tree." Her brother-in-law, who was sitting in the car to which she was going and who picked her up after she fell, described the place as "very dark."
It was her duty to look where she was walking. If she could have seen and yet did not look and stumbled over the boxes, her own negligence in failing to look would bar recovery: McIlhenney v. Phila., 214 Pa. 44, 63 A. 368 (where plaintiff tripped over a curbstone at night); Robb v. Connellsville Borough, 137 Pa. 42, 20 A. 564 (plaintiff injured in stepping from foot pavement to planked street crossing in the evening); Jones v. Counties Gas and Electric Co., 289 Pa. 128, 137 A. 168; Hentz v. Somerset Borough, 2 Pa. Super. 225). But if she could not have seen, we are confronted with the fact that she rejected a well lighted course, equally convenient, free from danger, and chose one, after leaving the pavement, that required her to walk where it was so dark that she could not see where she was walking. Jones v. Gas Co., supra; McIlhenney v. Phila., supra; Watts v. Plymouth Borough, 255 Pa. 185. She was under no compulsion to take the dark way in preference to the lighted one, and she was required, in leaving the paved portion of the sidewalk, to exercise a higher measure of care than while walking on the pavement: see Guinter v. Williamsport, supra; Martin v. Williamsport, supra; Watts v. Plymouth Borough, supra; Robb v. Connellsville Borough, supra. Her contributory negligence bars recovery.
The cases on which appellants rely were cases of defects in the sidewalk; none deals with the condition at a point off the pavement, excepting Murtha v. Phila., 112 Pa. Super. 426, 171 A. 399, which obviously is not in point.
Judgments affirmed.