Hopkins v. Williamsport , 25 Pa. Super. 498 ( 1904 )

Opinion by

Oblad y, J.,

On February 18, 1908, Mrs. Mary Hopkins when in perfect health and agéd thirty-eight, sustained a fall upon the sidewalk about 9: 30 in the morning, and recovered as damages therefor from the defendant a verdict of $1,000; the same jury returned a verdict in favor of Parazette Hopkins, her husband, for $500. At the time of the trial a question of law was reserved and judgment subsequently entered in favor of the defendant on the reserved question non obstante veredicto.

When on the witness stand Mrs. Hopkins, who is evidently an intelligent and conscientious witness, could not, give any specific cause for her accident, her testimony being as follows: “ Q. Detail to the court and jury what happened as you went up Market Square immediately in front of Kaplan’s store. A. Well, I cannot tell every detail, I fell so fast. I went, crossing the street diagonally, to go to Mr. Harding’s stand, and I fell so quickly I could not catch myself. Usually in falling we can catch ourselves, but I didn’t slip, I just fell. I don’t know anything about how I did fall. Q. As you walked along the pavement on Market Square, what were you doing? A. I was looking for this stand, minding my business. I never look around very much when I get in the street. Q. Point out on the map to the jury about the place you fell. A. It is hard for me to tell. I don’t know just exactly. It was right in here somewhere, I imagine so, I think so. I cannot tell because I fell so quickly. Q. Was it near the upper end of the store, or the lower side of the store? A. I judge it was near about the middle, more possibly to the upper side, because I noticed when they put me in the cab to take me home, I turned round and said, ‘There is where I fell,’ but I don’t know the exact spot now.”

She was carrying a basket and some small packages on her way to market. She described the weather as being “ dreadful cold and windy and the pavement very slippery.” Other witnesses, about whose testimony there was no controversy, described the weather on the four preceding days as being cold and stormy, sleet and snow falling, and the thermometer twenty degrees above and down to zero on the day she fell. Efforts had been made to clear the pavement of sleet and snow, which in part were successful, but owing to the severe cold weather the pavement was not entirely clear of snow.

It is in the common experience of all that injuries of this character may be caused without any negligence on the part of the municipality, and to entitle the plaintiff to recover, there must be not only a cause of action, but sufficient proof to convict the municipality of negligence in not maintaining a safe and sufficient sidewalk, after notice, actual or implied, of the existence of the defect: Burns v. Bradford City, 137 Pa. 361; Duncan v. Philadelphia, 173 Pa. 550.

In this case the plaintiff, very frankly, not only fails to give the cause for which the city would be liable, but says, “ I didn’t slip, I just fell. I don’t know anything about how I did fall.” There is no evidence in the record to explain the cause of her injury or evidence of notice to the municipality. The accident happened on a principal street of the city, in broad daylight, during very inclement weather, and there was no evidence to submit to the jury as to the city’s liability.

The judgment is affirmed.