Cerino v. Philadelphia

257 A.2d 571, 435 Pa. 355, 1969 Pa. LEXIS 729

Opinions

Opinion by

Mb. Chief Justice Bell,

This is an appeal from the Judgment of the Court of Common Pleas entered for defendant non obstante veredicto and after denial of the plaintiff’s motion for a new trial.

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:

On Friday afternoon, July 22, 1960, at approximately 5:30 P.M., Mrs. Susan Cerino (plaintiff’s decedent) was returning home on foot from marketing. It was a bright, sunny day. Mrs. Cerino, a short, heavy woman, was carrying a large package as she approached the intersection of 22nd Street and Indiana Avenue. The area in which Mrs. Cerino was walking was a shopping district; cars were parked on both sides of 22nd Street. When she reached the intersection of 22nd Street and Indiana Avenue, she paused on the corner waiting for the traffic light to change. In the crosswalk in front of Mrs. Cerino, about two feet from the curb, was a large excavation, six feet long, four feet wide, and three inches deep. Within the area of the excavation was a manhole, the cover of which was about three inches above the bottom of the excavation. After the traffic light turned green, Mrs. Cerino looked to the left and to the right, then stepped off the curb into the excavation, tripped, and fell onto the manhole cover. As a result of this fall, Mrs. Cerino sustained serious injuries.

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Mrs. Cerino sued the City for negligence in allowing the obstruction to remain after repeated requests for its repair. The jury found a verdict for plaintiff Susan Cerino in the amount of $6,992, and $3,624 for her husband, James Cerino. Defendant filed a motion for judgment n.o.v.; plaintiff filed a motion to strike defendant’s motion for judgment n.o.v. and also a motion for a new trial. Plaintiff’s motion for a new trial was based upon (a) the lower Court’s refusal to admit into evidence Susan Cerino’s answers to defendant’s interrogatories, and (b) the lower Court’s failure to charge on certain points presented by plaintiff, and (c) the inadequacy of the verdict.

The lower Court denied plaintiff’s motion to strike and her motion for a new trial, and granted defendant’s motion for judgment n.o.v. on the ground that plaintiff was contributorily negligent as a matter of law. From this Judgment, plaintiff took this appeal.

No external conditions were proved by plaintiff which prevented her from seeing the defect or which could excuse her failure to observe and avoid the large excavation and the manhole cover lying in her path. The fact that street traffic was heavy at the time of the accident is not, without more, an adequate legal explanation of or excuse for her failure to look and see and avoid the large excavation. See Knapp v. Bradford City, 432 Pa. 172, 247 A. 2d 575.

In Knapp v. Bradford City, supra, this Court reversed the lower Court, entered judgment n.o.v., and pertinently 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.” Further, the Court in that case answered and disposed of plaintiff’s argument that the sound of automobiles was a legally sufficient distraction when we said (page 175) : “The sound of automobiles is hardly an uncommon occurrence in urban America. City inhabitants are required to have the ability to look where they are going while remaining conscious of their surroundings. Their attention should not be diverted by the ordinary sounds of city traffic. In this instance there is nothing so removed from the ordinary to legally constitute a distraction.”

Plaintiff has not sustained her burden of proof of external conditions which prevented her from observ ing on a bright, sunny afternoon the large, visible excavation which was only two feet from the curb.

Judgment for defendant non obstante veredicto affirmed.

Mr. Justice Pomeroy concurs in the result.

Mrs. Cerino died on December 7, 1965, from causes unrelated to the accident on which this suit is based.