Garland v. City of Wilkes-Barre , 212 Pa. 151 ( 1905 )

Opinion by

Mb. Justice Elkin,

The circumstances of this case are similar to those presented" in Mauch Chunk v. Kline, 100 Pa. 119, wherein it was held that the plaintiff must satisfy the jury that there was an obstacle, other than the mere slippery condition and smoothness of the surface that made the crossing where he fell dangerous. A general slippery condition of the street at a public crossing caused by the snow and ice in the winter time is not sufficient to charge the municipality with liability, for the obvious reason that it cannot prevent it: McLaughlin v. City of Corry, 77 Pa. 109.

In the case at bar the testimony of the appellant does not' disclose more than a slippery condition of the crossing at the time of the accident, with some slight ridges of ice caused by wagons and Sleighs passing, over. When ashed to tell the jury how it happened, -she replied, “As I-got to-this pavement I slipped and fell. -My foot went down, you know, and slipped.” The accident occurred on a Saturday night. To support her allegation of negligence, on the part of the municipality, a witness was called to prove that, on the preceding Wednesday night the crossing in question was not only icy and slippery, but 'ridgy as well. No testimony was offered by the appellant to show the condition of the crossing between Wednesday arid Saturday, and no basis was furnished for the inference which the jury was asked to draw, to wit: that the condition testified to by this single witness continued unchanged until Saturday evening when she sustained the injuries that constitute the subject-matter of her complaint. In the meantime hundreds of wagons and sleds and thousands of pedestrians had passed over the crossing. Doubtless the passage of various vehicles up and down the alley caused the formation of small ridges of ice, but were these such as to render the crossing dangerous, and if so, was the danger apparent and notorious ? Of the numerous persons who passed along the sidewalk from Wednesday night to Saturday afternoon, not a witness was produced who avoided the crossing or regarded it as dangerous. Under this state of facts it is difficult to see under what theory the city could be charged with constructive notice. If a defect is such that it is discovered by only one of a thousand or more, persons who pass it in the ordinary pursuit of business or pleasure, it cannot be said to be notorious, or such a defect as a municipality is bound to take notice of: Burns v. Bradford City, 137 Pa. 361.

It is 'true the mother of the plaintiff testified that about the middle of Saturday afternoon she saw ridges of ice here and there on the crossing, but an examination of her testimony makes it doubtful what she meant by the term “ ridges of ice, ” or whether she would have noticed them .had she not been obliged to use a crutch in walking. The ridges of ice described by her were such as were caused by horses, wagons and sleds that were continually passing over the crossing. If her testimony could be regarded as establishing a dangerous condition of the crossing on Saturday afternoon, and no evidence had been given by the defense that later in the same afternoon it had been cleaned and all the snow and ice removed, the short time which elapsed before the accident would be insufficient to charge the municipality with constructive notice.

Assignments of error overruled and judgment affirmed.