Kresovich v. Fitzsimmons , 439 Pa. 10 ( 1970 )

Opinion by

Mr. Chief Justice Bell,

Plaintiffs Pauline Kresovich and Joseph Kresovich, her husband, instituted a trespass action against the defendants Catherine Fitzsimmons and Fred Creamer, executors of the Estate of Margaret Brockerhoff (hereinafter called the Estate), to recover damages for injuries allegedly sustained by the plaintiff-wife when she fell while walking on a sidewalk in front of and abutting defendants’ premises. The case was tried before a Judge and jury and resulted in a verdict in favor of the plaintiffs in the amount of $20,000. The Estate filed a motion for a new trial and for judgment non obstante veredicto. The Court below denied the motion for a new trial, but granted judgment n.o.v. From the judgment n.o.v., the Xresovich.es took this appeal.

In Cerino v. Philadelphia, 435 Pa. 355, 257 A. 2d 571, this Court said (page 357) : “In Firestone v. Schmehl, 420 Pa. 644, 218 A. 2d 324, the Court said (page 646) : ‘It is hornbook law that in considering a motion for judgment n.o.v. the evidence must be considered in the light most favorable to the verdict winner and he must be given the benefit of every reasonable inference of fact arising therefrom and any conflicts in the evidence must be resolved in his favor: Wood v. Conneaut Lake Park, Inc., 417 Pa. 58, 209 A. 2d 268; Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A. 2d 864.’ However, he is not entitled to inferences which amount merely to a guess or conjecture: Wood v. Conneaut Lake Park, Inc., 417 Pa., supra.”

Viewed in that light, the facts of this case are as follows:

The accident occurred on December 6, 1963, a clear day, at approximately 8:40 in the morning. At the time of the accident, Pauline Kresovich was walking from St. John’s Roman Catholic Church in Bellefonte to her place of employment, Weis Market—a distance of approximately one and one-half blocks. Mrs. Kresovich was well acquainted with the route she had to travel in order to go from the church to her place of employment, since she regularly attended morning religious services at St. John’s prior to going to work, and she had been employed at Weis Market for approximately ten years prior to the day of the accident.

Plaintiff-wife testified that she crossed Bishop Street from south to north, at or near its intersection with Cherry Alley.^* It was her usual custom to walk near the store windows, or inside portion of the sidewalk, in order to avoid the broken portions of pavement which she knew had been in a defective condition for a long time prior to the accident. As she was crossing Cherry Alley, she observed, a short distance ahead, an elderly man approaching on the sidewalk. Pauline Kresovich stepped up over the curb onto the sidewalk, and proceeded westwardly. She then looked up and saw that the elderly man was within two feet in front of her. Mrs. Kresovich stepped to the left to avoid the man and tripped on an uneven block of cement. The elderly man, later identified as William Gamber, testified that he could have easily walked past Mrs. Kresovich on the portion of the sidewalk that was in good condition.

The primary issue presented by this appeal is whether the lower Court committed an error of law by declaring the plaintiff-wife contributorily negligent as a matter of law. “We have said again and again that contributory negligence should not be declared as a matter of law except in a very clear case and only where the evidence thereof is so clear and palpable that there is no room for fair and reasonable men to differ in their conclusions as to its existence. Sweigert v. Mazer, 410 Pa. 71, 188 A. 2d 472 (1963).” Gillingham v. Patz, 429 Pa. 308, 312, 239 A. 2d 287. See, Quinn v. Kumar, 437 Pa. 268, 263 A. 2d 458.

In Knapp v. Bradford City, 432 Pa. 172, 247 A. 2d 575, this Court said (page 174) : ‘“[0]ne who fails to observe a dangerous condition plainly visible and nevertheless proceeds without regard to his own safety must be held guilty of contributory negligence as a matter of law’, Miller v. Exeter Borough, 366 Pa. 336, 77 A. 2d 395 (1951). It follows that one who sees such a defect and continues on is likewise contributorily negligent. Plaintiff relies on the long standing corollary of this rule: ‘One who, in broad daylight, walks into an obvious defect in a sidewalk is presumptively negligent and the burden is upon that person to show conditions outside of himself which prevented his seeing the defect, or which would excuse failure to observe it. McDonald v. Mars Borough, 371 Pa. 625, 92 A. 2d 199; Leson v. Pittsburgh, 353 Pa. 207, 44 A. 2d 577; Lerner v. Philadelphia, 221 Pa. 294, 70 A. 755. . . .’ Walsh v. Philadelphia, 175 Pa. Superior Ct. 622, 106 A. 2d 851 (1954).” Accord: Cerino v. Philadelphia, 435 Pa., supra; Beil v. Allentown, 434 Pa. 10, 252 A. 2d 692.

Mrs. Kresovich contends that she has met this burden by presenting testimony which tended to show that her attention was distracted when she was suddenly confronted with the presence of an elderly man, approaching from the opposite direction, directly in front of her. She relies upon several Opinions of this Court and of the Superior Court to support her position: Knapp v. Bradford City, 432 Pa., supra; Pro v. Pennsylvania R.R. Co., 390 Pa. 437, 135 A. 2d 920; Sandherr v. Pottsville, 201 Pa. Superior Ct. 547, 193 A. 2d 625; Emmey v. Stanley Company of America, 139 Pa. Superior Ct. 69, 10 A. 2d 795. However, these cases do not support her claim. This precise argument or contention has previously been considered by this Court and rejected. In Knapp v. Bradford City, 432 Pa., supra, this Court said (page 175) : “In the cited cases and in every other case the distraction was such that plaintiff was prevented from observing the obvious defect by the distraction. Plaintiff points out no case in which this exception has been extended to one who has already observed the defective condition. To extend the exception so far would be to defeat the ‘open and obvious danger’ rule altogether. Plaintiff saw the danger and failed to heed it.”^*

Furthermore, the facts of the case at bar are strikingly similar to Roth v. Verona Borough, 316 Pa. 279, 175 Atl. 689. In Both, the plaintiff sustained injuries when she stepped into a hole in the sidewalk. The day was clear and dry. Plaintiff testified that she “knew the sidewalk was rough and uneven, and really wasn’t fit to walk on.” It was contended that the hole could have been concealed from plaintiffs view (1) by children running around the pavement and (2) by a man who was walking towards her. When plaintiff and the man came face-to-face, she stepped aside to avoid him and thereby stepped into the hole. This Court held that the plaintiff was contributorily negligent as a matter of law, and pertinently said (page 282) : “. . . [S]he was too close to the hole when she stepped into it for either him or the children to have interfered with her seeing it at that time. It is evident she was then giving no heed to her own safety. When she stepped to one side and into the hole, she either saw it or she did not. If she looked she must have then seen it and deliberately or negligently stepped into it .... If she did not look, then she neglected her duty in traversing this pavement, which she knew ‘really wasn’t fit to walk on.’ In either event she cannot recover.”

Mrs. Kresovich had knowledge that the defendant’s sidewalk had been in a defective condition for a long time, and the approach of Camber did not excuse her stepping into this well-known and plainly obvious defect.

We find no error of law.

Judgment affirmed.

* Sometimes called Perry Alley.

* Italics throughout, ours.