Calligan v. Monongahela City

Opinion by Mr. Justice Simpson, Plaintiff recovered a verdict and judgment for injuries resulting from an alleged defect in a sidewalk on one of defendant’s streets, and the latter prosecutes this appeal, presenting for our consideration the following questions only: (1) Was the hole into which plaintiff stepped “such a defect in the sidewalk as to render it not reasonably safe, and create liability on the municipality charged with its maintenance”? and (2) Was there proof of “the existence of that particular defect, for a sufficient time to show constructive notice” ? At the place where the accident happened the pavement consisted of an iron framework, containing round pieces of glass, two and a quarter inches in diameter, through which light entered into a vault below. From some unstated cause, a number of the pieces of glass had fallen out or been removed, leaving holes in the pavement, and about 6 a. m. of February 17,1920, “the morning being rainy and dark,” while plaintiff was walking on the pavement, the heel of her shoe, which was “an ordinary woman’s shoe, with a ‘common sense’ heel” caught in one of these holes, two layers of the heel were torn off and she was thrown down, receiving the injuries of which she complains. “The identical plate that was at the place of the accident,” and a shoe and heel of the character worn by plaintiff, were shown to the jury. That the city was charged with knowledge of the fact that women would use the pavement, and that a jury, in [30] a proper case, might find it was negligence to leave a hole therein, so large that heels of the nsnal size would probably catch in it and throw the wearer thereof to the ground, are propositions too plain to require argument. Much point was made regarding the shallowness of the hole, but this is a matter of no moment, where, as here, the sides were abrupt, thereby, as a jury might find, naturally catching and holding such a heel. We do not qualify our oft-repeated rulings in the case of inequalities in a pavement, caused by wear and tear or the actions of the elements; they have no relevancy in this class of cases. If the glass had been taken out on the day the pavement was laid, the danger would have been as great as it was on the day this accident happened. Had the heel of plaintiff’s shoe been unusually narrow, and, by reason thereof, it had caught in the hole and she had been injured, the court below could have given binding instructions for defendant, for a municipality is not obliged to anticipate the abnormal, however fashionable it may be or become; but here, as stated above, the heels were of the usual size worn by women, and it was, therefore, for the jury to say whether or not the hole was of such a character as to naturally grasp this kind of a heel. On the second question raised we are of opinion the proofs were sufficient to justify the jury in finding the existence of the particular defect for such a length of time as to affect the municipality with constructive notice thereof. There were eight such holes in the pavement, plainly visible in the daytime, and these facts alone should have called attention to its unusual if not dangerous condition. The trial judge, in his opinion, correctly epitomizes part of the evidence in plaintiff’s favor, as follows: “John W. Dodds gave testimony from which the jury could find the existence of this particular hole at least two months previously_____ .It was identified by the plaintiff, by her subsequently finding a piece of her heel wedged fast in it, as being the third hole out [31] from the building. Dodds testified that among the holes which he saw were one in the first row, at the corner of the plate, two about the sixth row, and two back from that toward the building. Photographs of the place, which are in evidence, show one hole just at the corner, in the first row of discs, i. e., the row next to the building; two contiguous holes, not in but near to the sixth row; and two between them and the building, one of the latter two being the one identified by the plaintiff. The photographs show that at the time of the accident there were only three holes (one of them the cause of the accident) between the sixth row of discs and the edge of the plate toward the building; and Dodds testifies to having seen, two months previously, three holes between that sixth row and the building. Evidently the hole in question was one of those which he saw.” The jury having found from this and the other evidence in the case, that the particular hole in which plaintiff’s heel caught, had existed for a sufficient time to charge the city with constructive notice thereof, we cannot say, as a matter of law, that their conclusion was erroneous. The judgment of the court below is affirmed.