Braden v. Pittsburgh , 143 Pa. Super. 427 ( 1940 )

It is my opinion that the judgment of the court below should be reversed. To affirm this judgment is to take the position that under the circumstances of this case, all facts and inferences of facts reasonably deducible therefrom being considered most favorably for plaintiffs, the minor plaintiff is to be adjudged guilty of contributory negligence as a matter of law, or the city is to be adjudged free from negligence as a matter of law. The majority of this court are "unable to say that sixteen hours with fewer than three hours of daylight was sufficient under the circumstances to charge the city with constructive notice of the danger." The evidence does not support holding as a matter of law that the city had no constructive notice of the danger. The real issue before this court, it seems to me, is whether the evidence adduced by plaintiffs was sufficient to entitle the question of defendant's negligence to go to the jury. This is not such a "clear case" as would justify its withdrawal from the jury.

The work of reconstructing the stairway was under the supervision and control of the city. The undisputed facts establish the dangerous condition of the lower portion of the stairway, comprised of a series of descending excavations. No third party was involved here either in making the improvement or in leaving the premises in the condition they were at the time of the accident. The city alone was directly engaged in the work. Hence, the responsibility for exercising due care with reference to the traveling public, rested directly upon the city alone. This responsibility was recognized when the city erected barricades carrying the warning "Travel at Your Own Risk." Nothing further appears to have been done to close the stairway entirely to public travel.

Moreover, this duty of due care could not be absolutely discharged merely by setting up barricades and, thereafter, giving no more attention to the stairway or the approaches thereto. The duty was a continuing one. Some reasonable precaution against the removal of the barricades was necessary, or such adequate attention as would result in the replacement of the barricades if removed. It appears from the undisputed facts that the barricades erected by the city, were not in place for a period of nearly sixteen hours, from 4:30 P.M. on February 7, to 8:00 A.M., February 8, when the accident occurred. Conceding that of the sixteen hour period during which the barrier was down "there was something less than a total of three hours of daylight," it should be noted that there was some period of daylight immediately preceding thirteen hours of darkness. It does not appear that the city made any inspection at the close of day just preceding the long night ahead; nor does it appear that any inspection was made the following morning after the lapse of more than thirteen hours and prior to the accident.

The case of Beck v. Hood, 185 Pa. 32, 39 A. 842, involved an action to recover damages for personal injuries suffered by reason of a pile of stones on a sidewalk. The block of stone had been delivered by the employees of the defendants' contractor before "the close of day" of the 31st of August. The plaintiff, walking along the sidewalk, about 9:30 P.M., ran against the block of stone and injured his leg. The defendants asked the court to instruct the jury that if the sidewalk had been poled or fenced off by defendants on the evening before the happening of the accident, and the pole had been taken down without the defendants' knowledge by parties over whom they had no control, they were not liable for the accident. The Supreme Court held this instruction was properly refused, saying at p. 40: "It would not be enough for a builder to fence off a part of the walk, because it was in a dangerous condition, and then give it no more attention. He knows the probabilities of the removal of the barrier by mischievous or disorderly persons, and he should exercise reasonable care to see that it is in place. It might not be necessary to maintain a watchman at the spot during the night, but the builder should give some attention to this subject during the evening, and while the walks are actively occupied, in order to be sure that the lights and barriers he has provided to protect the public are in place and doing their work. How well this had been done in this case was for the jury. The pole was certainly down, according to the plaintiff's testimony, when he came upon this part of the walk, although it had been found in place but a few moments before."

As to the question of the minor plaintiff's contributory negligence: the testimony indicates that the minor plaintiff had no knowledge of the defective condition of the stairway prior to her entrance upon it. It was only after she became committed to the use of the stairway and actually entered upon the descent that she became aware of the fact that it had not yet been completed. When she had reached the bottom of the completed stairway, she first observed the absence of wooden steps for the remaining 45 feet of the descent. She testified that she did not realize at first that these excavations, coated with ice, were in a dangerous condition since the first one was not so bad. The second dirt step, she testified, was about the same, the third a little bad, the fourth about the same, the fifth rather bad. At this point she stated that she did not turn back because she was afraid of falling on the way back, and that she might be late for school. However, she decided to continue down the remaining dirt steps, covered with rough ice and having a surface of light snow. It was on the sixth or seventh step that she fell.

The minor plaintiff, in making her way down the stairway, managed to descend the wooden stairway in safety. It was only after she had reached the fifth or sixth step-like excavation, about two-thirds of the way down the entire descent, that the danger of the situation confronted her. At this point, travel in either direction was dangerous. The possibility of avoiding an apparent risk by a prudent selection of an alternative course, was no longer a matter depending on the exercise of due care. She made her choice and continued down the dirt excavations.

There is no question that the duty imposed upon an adult, is one that requires the use of such care as is usual under similar circumstances by a prudent person, that is, to look where he is going and to exercise reasonable diligence to avoid a dangerous hazard: Brinkos et ux. v. McKeesport City, 136 Pa. Super. 526, 7 A.2d 516. In that case, a verdict was returned in favor of the wife plaintiff in an action against the city for injuries sustained by her when she fell upon a defective temporary step leading from a store to the street, which she knew was under repair, but which was not closed to pedestrians, and this court there held that her contributory negligence was a question for the jury.

On the other hand, a child of thirteen years of age, although not conclusively presumed to be incapable of appreciating and guarding against danger, is held only to such measure of discretion as is usual in those of her own age and experience, and the measure of her responsibility for contributory negligence is her capacity to understand and avoid danger: Kehler v. Schwenk, 144 Pa. 348,22 A. 910; Neidlinger et ux. v. Haines, 331 Pa. 529, 200 A. 581. A careful examination of the record in the instant case precludes the conclusion that the minor plaintiff failed, as a matter of law, to exercise the degree of care required of her. The question of the minor plaintiff's contributory negligence, like the question of the city's negligence, was, in my opinion, properly for the jury. I would, therefore, reverse the judgment of the court below and direct judgments to be entered in favor of the plaintiffs on the verdicts of the jury.