
    Kilbride v. City of Philadelphia, Appellant
    (No. 1).
    
      Negligence — Municipalities—Defect in sidewalk.
    
    Persons walking on the pavements of a large city are not bound to exercise extraordinary care. Care according to tbe circumstances, is all tbe law enjoins. They have the right to assume that pavements are reasonably safe, and that they, by the ordinary use of their eyes, at an ordinary pace, can safely walk on them.
    Argued Oct. 16, 1918.
    Appeal, No. 158, Oct. T., 1918, by defendant, from judgment of C. P. No. 2, Philadelphia Co., September T., 1916, No. 2880, on verdict for plaintiff in case of Lillian M. Kilbride and Thomas C. Kilbride v. City of Philadelphia.
    Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexlbr and Williams, JJ.
    Affirmed.
    Trespass for personal injuries. Before Eogers, J.
    The facts are stated in the opinion of the Superior Court.
    
      February 28, 1919:
    Verdict and judgment for plaintiffs for Thomas C. Kilbride $100 and for Lillian M. Kilbride $500 and judgment thereon. Defendant appealed.
    
      Error assigned was in refusing binding instructions for defendant.
    
      Hugh McAnany, Jr., Assistant City Solicitor, and with him Michael J. McHenry, Assistant City Solicitor, and John P. Connelly, City Solicitor, for appellant.
    The plaintiff was guilty of contributory negligence: Graham v. Philadelphia, 19 Pa. Superior Ct. 292 (1902); Easton v. Philadelphia, 28 Pa. Superior Ct. 517 (1904); Auberle v. McKeesport, 179 Pa. 321 (1897); Sickles v. Philadelphia, 209 Pa. 113 (1904); Kennedy v. Philadelphia, 220 Pa. 273 (1908); Bean v. Philadelphia, 260 Pa. 278 (1918); Tolan v. Philadelphia, 35 Pa. Superior Ct. 311 (1908).
    To establish negligence it was necessary to show that the defendant had actual or constructive notice of the defective condition: Lohr v. Philipsburg Boro., 156 Pa. 246 (1893); Lindstrom v. Penna. Co., 212 Pa. 391 (1905).
    
      Francis M. McAdams, and with him Harry P. Felger, for appellee.
   Opinion by

Orlady, P. J.,

The defendant in this case offered no evidence. The charge of the trial judge was so satisfactory that no exception was taken to it, the defendant presenting a single point, that under all of the evidence the verdict should be for the defendant, which was refused and the verdict was returned for the plaintiff. The contention of the appellant now is, that the plaintiff, Lillian M. Kilbride, was guilty of such contributory negligence as to prevent her recovery. Her testimony in describing the accident is very clear, and is corroborated by several witnesses called in her behalf. She was called suddenly from her home on an errand of mercy about seven p. m.— when it was twilight — quite dark — to go to a home on the opposite side of the street from her residence. When she stepped from the roadway to the curb her foot went into a hole in the cement pavement, about five inches wide and three and a half inches deep, located one foot from the edge of the curb, caused by the absence of the top of a vent pipe and the breaking of the cement around it. She did not know of the existence of this hole in the pavement prior to the accident, and other witnesses testified it had existed for a couple of weeks prior thereto. The testimony clearly shows that she was not using the pavement in a careless or indifferent manner. His own words are “I was looking right ahead, quite a distance, as far as I could see, where I was going. I kept my eyes ahead, quite a distance ahead, watching where I was going. There was nothing between me and the defect in the pavement before I stepped on to it. I did not notice it.. I went just across the street.” Bruch v. Philadelphia, 181 Pa. 588, is a conclusive answer to the appellant’s contention. The plaintiff in that case, while walking on a pavement stepped into a hole and received injuries. He did not see the hole until he fell into it, and when he got up he saw, and could then see it only by looking carefully, — the court saying, “This is the identical experience of the most careful man who has met with such an accident. In the exercise of ordinary care he does not see a peril, • otherwise he would avoid it; he falls into an excavation, crawls out, and by looking carefully, with all his senses quickened by the mishap, he sees and realizes the cause. By the exercise of extraordinary care before the accident he might have discovered that which was not ordinarily observable. But, the public walking on the pavements of a large city, are not bound to exercise. extraordinary care; care according to the circumstances, is all the law enjoins. They have the right to assume the pavements are reasonably safe, and that they, by the ordinary use of their eyes, at an ordinary pace, can safely walk on them.

The case was carefully tried, and we find, no reversible error in the record.

The judgment is affirmed.  