
    Hincken v. Beechview Borough, Appellant.
    
      Negligence — Boroughs—Defective sidewalk — Contributory negligence.
    
    In an action by a woman against a borough to recover damages for personal injuries sustained by a fall on an alleged defective sidewalk, a verdict and judgment for plaintiff cannot be sustained, where the evidence shows that several weeks before the accident a section of a boardwalk which covered the sidewalk had been removed; that the plaintiff had been over the place five times before; that the accident happened in broad daylight on a sunshiny afternoon; that plaintiff’s view was unobstructed; that on the morning of the accident the ice and snow which had previously covered the ground had thawed, rendering the ground slippery; but that the place was not essentially and continuously dangerous. In such a case, the plaintiff’s contributory negligence prevents her recovery.
    Argued April 17, 1912.
    Appeal, No. 105, April T., 1912, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1908, No. 975, on verdict for plaintiff in case of George Hincken and Mary Hincken, his wife, v. Beechview Borough.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. ‘MacFarlane, J.
    
      July 18, 1912:
    The facts relating to the accident are set forth in the opinion of the Superior Court.
    Verdict and judgment for George A. Hincken for $400, and for Mary G. Hincken for $400. Defendant appealed.
    
      Error assigned was in refusing to grant motion for judgment for defendant non obstante veredicto.
    
      Harry Diamond, with him C. A. O'Brien, for appellant,
    cited: Hendrickson v. Chester, 221 Pa. 120; Kennedy v. Philadelphia, 220 Pa. 273; Smith v. New Castle, 178 Pa. 298; Hill v. Tionesta Twp., 146 Pa. 11; Steck v. Allegheny, 213 Pa. 573; Lerner v. Philadelphia, 221 Pa. 294.
    
      R. S. Martin, with him Jere Carney, for appellees,
    cited: Rife v. Middletown, 32 Pa. Superior Ct. 68; Baylor v. Stevens, 16 Pa. Superior Ct. 365; Miller v. Montgomery Boro., 39 Pa. Superior Ct. 597; Chambers v. Braddock Boro., 34 Pa. Superior Ct. 407; Jordan v. Phila., 29 Pa. Superior Ct. 502; Reynolds v. Phila., 221 Pa. 51; March v. Phoenixville Boro., 221 Pa. 64; McManamon v. Hanover Twp., 232 Pa. 439.
   Opinion by

Morrison, J.,

The plaintiffs were husband and wife and resided in the city of Philadelphia. The wife, Mary G. Hincken, had been in the borough of Beachview, Allegheny county, for about two weeks preceding the alleged accident to her on a sidewalk, visiting her son, Everett Hincken, who at that time and for ten months preceding lived in the Henderson apartments in Beachview borough. The Henderson apartments were located at the comer of Eighth and Trenton avenues. From these apartments to Seventh and Trenton avenues was about 200 feet. The grade on Eighth avenue between the apartments and the street below where the accident occurred was about thirty per cent, was unpaved and had no sidewalk except a boardwalk. The plaintiff’s testimony was that she left the apartments about 10 o’clock a. m. to get a train for Philadelphia which would leave Pittsburg at 1.30 p. m. and that it took about twenty-two minutes to get to the depot. Going from the apartments to the street car line down Eighth avenue on the left-hand side there was a boardwalk built in a series of terraces. For several weeks before the accident two sections of the boardwalk had been removed in front of a schoolhouse which sat back from the roadway to enable wagons to drive in and out of the school yard. For several days before the accident there were ice and snow on the ground and on the morning of the accident the weather moderated, thawing the ground and rendering it slippery at the place of the accident. There was no sufficient evidence, nor allegation in the declaration, that the ground where the accident happened was defective in any manner, nor was it sufficiently alleged and proved that the place of the accident was essentially and continuously dangerous.

On the morning of the accident, in company with her son and daughter-in-law, Mrs. Hincken started down Eighth avenue and when she walked over the ground where the sections of the boardwalk had been removed, she slipped in the mud and fell and sustained the injuries to secure damages for which this suit was brought. The accident happened in broad daylight on a sunshiny forenoon. Mrs. Hincken testified that she was looking carefully and that she had previously been over this place five several times. She testified: “Q. Just as you got to the place where the accident occurred you were still walking carefully? A. I certainly was. Q. And you were still looking down? A. I knew that bad place was coming, and I took every precaution.” She further testified that the sun was shining and that the ground was slippery where the sidewalk had been removed.

The material allegation in the declaration is as follows: “On said street at a point near South avenue, two sections of the boardwalk which was there laid for the use of pedestrians had been taken up rendering the said sidewalk dangerous for any person who might happen to pass that way, and the said defendant had been repeatedly notified of the dangerous condition existing by reason of the boards having been taken up.” We therefore have this condition — a section of the board sidewalk had been removed for some time; this required foot passengers to walk on the ground at this point instead of on the boardwalk. There is no allegation that the ground was uneven or in bad condition or that there was any hidden or partially hidden danger there. It was simply a place where the boards had been removed, and the injured woman was quite familiar with the place, having walked over it five different times, and she says she was looking for this place and of course she saw the conditions, and she says that on account of the bright sunny morning the ground had thawed and it was slippery. She therefore knew precisely what the condition of the place was and she and her son, in whose care she was, volunteered to walk over this slippery place with the result that Mrs. Hincken slipped and fell. The son was a witness, and he testified that he had long considered this a dangerous place, yet he led his mother onto it on this morning while the evidence shows that it could easily have been avoided. Upon this state of facts we think Mrs. Hincken was clearly guilty of contributory negligence and that the learned court erred in submitting her case to the jury.

At the trial the defendent presented a point as follows: “Under all the evidence the verdict of the jury should be for the defendant.” Answer: “Refused.” Defendant’s fourth point was as follows: “Plaintiff having admitted that she was familiar with the dangerous nature of the sidewalk at the place of the accident; that her view was unobstructed; that the day was clear, the jury must find for defendant if it finds that if plaintiff had looked she could have seen any obstruction and avoided the accident.” Answer: “Refused.” We think both of these points ought to have been affirmed. The only assignment of error is that the court erred in refusing to grant the motion for judgment for defendant non obstante veredicto. The court directed judgment on the verdict which was entered November 18, 1911, and we find no exception in the record to this, except a short entry in the copy of the appearance docket as follows: “Exception sealed for defendant.” But under the recent Act of May 11, 1911, P. L. 279, it does not seem to be necessary to have an exception noted to the refusal to enter judgment non obstante veredicto in the present case because the judgment was not refused and judgment entered on the verdict until November 18, 1911, when said act was in force.

In deciding this case we are disposed to assume that the declaration is sufficient and that the plaintiff, Mrs. Hincken, had a right to travel down Eighth avenue at the time of the accident, if with her knowledge of the condition of the sidewalk owing to what she had seen before and what she saw at the time of the accident she saw fit to take the risk of going over that sidewalk. But the view we take of her case is that her full knowledge of the conditions existing there prevents her and also her husband from recovering because she was guilty of contributory negligence.

In Hendrickson v. Chester, 221 Pa. 120, the Supreme Court said: “It was not shown that the place of the accident was essentially or continuously dangerous, though it might become so from time to time when the ice melted in the day and froze in the night. There was no accumulation of ice or snow that remained there all the time. This resulted in a temporary and changeable condition dependent on the variation of the weather and it appeared that on the day preceding the evening of the accident the ice had melted and the street was clear. The learned judge was of opinion that the most that was shown ‘was a general slippery condition of the street which occurs in all cities in winter time.’ We have not been convinced that this was an erroneous view.” In the present case there was simply a portion of the sidewalk removed which left the ground for pedestrians to walk upon. There is no allegation that this ground was essentially dangerous, but the plaintiff’s own testimony is that on the morning of the accident the sun was shining and that the ground was muddy and slippery and she slipped and fell. The only fair inference from this testimony is that this slipperiness, which caused her fall, occurred from the sunshine of that forenoon and of course this condition had not existed for a sufficient length of time to visit the city authorities with constructive notice. When the plaintiffs failed to show that the condition existing at the place of the accident had been essentially dangerous for a considerable length of time, they failed to make a case. It is true that there is some evidence which amounts to the opinion of witnesses that this was a dangerous place, but the actual description of the place tends strongly to establish the fact that the removal of the section of the sidewalk did not create a dangerous place. But, whatever the condition was, the plaintiff, Mrs. Hincken, was familiar with it, and the accident happened in broad daylight on a bright day and she 'saw, or was bound to see, the exact condition before she walked upon this spot of ground.

In Lerner v. Philadelphia, 221 Pa. 294, there is a very concise and interesting opinion of the Supreme Court delivered by Mr. Justice Stewart which is closely in point in the present case. In that opinion it is said: "When the accident occurs in broad daylight, in consequence of an open and exposed defect in the sidewalk, the burden rests upon the party complaining to show conditions outside of himself which prevented him seeing the defect, or which would excuse his failure to observe it. If such conditions exist, there is excuse for walking by faith. When they do not exist, the law charges the party with failure to do what was required of him. And that is this case. The accident occurred at half past four o’clock in the afternoon of an April day. The defect in the pavement was the displacement of some bricks. Into the depression caused by this displacement plaintiff stepped, with the result that she fell and injured herself. In bringing her action she assumed the burden of exhibiting a case clear of contributory negligence.” In that case the court below entered a compulsory nonsuit and refused to take it off and the Supreme Court affirmed the judgment.

In Kennedy v. Philadelphia, 220 Pa. 273, it was held as stated in the syllabus: “A woman who trips over a block of cement raised by the root of a tree four inches above the level of a sidewalk, cannot recover from the city'for her injuries, if it appears that she knew of the defect, that her view was unobstructed, that the day was clear, and that if she had looked she could have seen the obstruction and have avoided the accident.” We also refer to Rothacker v. Philadelphia, 42 Pa. Superior Ct. 408, and Dwyer v. Port Allegany Borough, 216 Pa. 22.

Our conclusion is that the learned court below erred in refusing to enter judgment in favor of the defendant non obstante veredicto.

The judgment is reversed and judgment is here entered in favor of the defendant.  