Rushton v. City of Allegheny

Opinion by Mb.. Justice McCollum, The plaintiff, Mary Rushton, claims $30,000 as damages for an injury she received in May, 1895, by a fall into a coal hole or chute in the center of a sidewalk on Federal street, in Allegheny city, and her husband, Henry Rushton, claims $10,000 to compensate him for the loss or impairment of her services, for medical treatment provided for her, and for the extra help required because of her disability. The evidence descriptive of the injury received is not disputed, and the only question to be determined is whether the evidence in the case is sufficient to charge the city, the owners of the property abutting on the sidewalk at the point of the casualty, the lessee in possession of the same, or either of them, with negligence. At the close of the evidence on the part of the plaintiff the defendants moved for a compulsory nonsuit, and their motion was sustained. The nonsuit was followed by a motion of the plaintiffs to take it off, which motion, upon due consideration of it by the court, was denied. It is a circumstance worthy of note that the defendants in the suit are the city, the owners of the property abutting as aforesaid, and the lessee of the owners. The joinder of the city with the owners of the property and their lessee as defendants shows that the plaintiffs were not able to specify the party chargeable with the alleged, negligence, and that it had [576] its origin in their hope of establishing negligence on the part of at least one of the several parties thus united. We agree with the learned court below that the plaintiffs cannot maintain their suit without proof of the negligence charged in the statement of their claim. The evidence to sustain the charge must be such as would authorize a jury in finding the material facts as alleged, and evidence which falls short of this does not meet the requirements of the law. If, therefore, the evidence in the case at bar is not sufficient to support the controlling charge, it was the plain duty of the court on the motion of the defendants to enter a compulsory nonsuit, and to deny the plaintiffs’ motion to take it off. The coal holes or chutes in the sidewalks of Allegheny city are authorized by the municipal authorities, and compliance with the regulations relating to them is all that is required of the owners or tenants of the abutting properties. The coal hole or chute in question is, in its location and construction, like the great majority, if not all, of the coal holes or chutes in said city. It was familiar to Mrs. Rushton, and according to her own testimony she passed over it at least twice a week during a period of five years immediately preceding her fall. None of the hundreds of pedestrians who passed over it daily before and after the occurrence in question received any injury from it, or complained at any time to any of the defendants or other persons of a defect in it. All the undisputed facts in the case were opposed to the plaintiffs’ contention, and the testimony submitted by them on the trial was clearly insufficient to sustain the charge of negligence against either of the defendants. A careful perusal and consideration of all the testimony warrants this conclusion. It follows that the court below did not err in entering or refusing to take off the non-suit. Judgment affirmed.