Gryning v. Philadelphia

Opinion by Mr. Justice Walling, At about one o’clock on the morning of February 2, 1918, plaintiff, while walking eastwardly, on the north side of Market street, near the west line of Thirteenth street, Philadelphia, fell and was seriously injured. The evidence was tO' the effect that his fall resulted from coming in contact with a large ridge of ice, three or four inches in thickness, which extended across the sidewalk and had been there for three weeks. It was a clear cold night and the walks in places were covered with ice, as plaintiff had observed while coming down from Twentieth street. He testified he knew the walks were slippery and was watching his way very carefully. His habit was to come down on the south side of the street, but on this occasion crossed over to buy a paper. The [279] electric lights were burning brightly on the corner where he fell, and the ridge of ice was perfectly visible for a considerable distance, although there was some dirt upon it. There is no conflict in the evidence as to the condition of the lights or the visibility of the ridge of ice; plaintiff says; however, he did not see the ice until after the accident. Defendant offered no evidence, and its request for binding instructions was declined. The jury found a verdict for plaintiff, upon which judgment was entered, and defendant brought this appeal. A verdict for defendant should have been directed on the ground of contributory negligence. Plaintiff, knowing the unsafe condition of the walks, was bound to be vigilant, although he had no prior knowledge of this particular ice. While a pedestrian is required to use only ordinary care, yet it is his duty to keep a general lookout so as to observe dangers directly in his path: Robb v. Connellsville Boro., 137 Pa. 42; Lerner v. Phila., 221 Pa. 294; Kleckner v. Cent. R. R. of N. J., 258 Pa. 461; Stern v. Reading, 255 Pa. 97. No one was near to obstruct his view or distract his attention, and, as above stated, there is no conflict in the evidence as to the light and his ability to see the ridge of ice. Under such circumstances it is vain for plaintiff to say he was watching his way very carefully and did not see it. He was a young man with normal eyesight, so far as appears, and was bound to see what was before his eyes. The traveler must use his faculties: Shuman v. North Union Township, 267 Pa. 344. The trial judge, while conceding it was perfectly light, suggests the fact that it was in the night, but the case turns upon the condition of the light, not the hour of the day. In Kleckner v. Central R. R. Co. of N. J., supra, we held plaintiff, who, in the night time, fell upon a piece of ice which could have been seen for six feet, guilty of contributory negligence. Here the ridge of ice was visible at a- much greater distance. True, where such danger is concealed by snow, as in Slife v. Dorranceton Boro., 262 Pa. 183; [280] Llewellyn v. Wilkes-Barre, 254 Pa. 196; Gross v. Pittsburgh, 243 Pa. 525; Green v. Hollidaysburg, 236 Pa. 430, the question of the pedestrian’s negligence is for the jury; but that is not this case. Viewing the case in the light most favorable to plaintiff, the verdict cannot be sustained. The judgment is reversed and is here, entered for the defendant non obstante veredicto.