Kennedy v. Pittsburgh

79 A. 550, 230 Pa. 244, 1911 Pa. LEXIS 595

• Court: Supreme Court of Pennsylvania
• Decided: January 3, 1911
• Docket: Appeal, No. 172
• Status: Published

Opinion

Opinion by

Mr. Justice Brown,

If the plaintiff succeeded in showing that the defendant was guilty of negligence, she at the same time most clearly established her own as a contributing cause of the injuries she sustained. In broad daylight, between two and three o’clock on the afternoon of March 23, 1907, as she was walking on Fifth avenue, in the city of Pittsburgh, and could have seen any obstruction in her way if she had exercised ordinary care in looking where she was going, she stumbled over a stone block in the center of the sidewalk, which protruded four or five inches above the surrounding surface. The only witnesses called to show the obstruction in the pavement were the plaintiff, her mother and her sister, who concurred as to the prominence of the obstruction. In view of their concurrent testimony, the contention of the plaintiff, as stated by her counsel in his argument on this appeal, is that “the defect in the sidewalk was so notorious as to be evident to all passers and had existed and continued for such a length of time that the defendant was bound to take notice of its existence.” While this statement was made to show the negligence of the city, it presents with unquestionable correctness the situation so far as the plaintiff is concerned, and what “was so notorious as to be evident to all passers” must have been evident to her if she had given any heed to where she was going. Under Shall-cross v. Phila., 187 Pa. 143; Kennedy v. Phila., 220 Pa. 273, and kindred cases, defendant’s point should have been affirmed. The assignments of error are sustained, the judgment is reversed and is entered here for the defendant.