Opinion by
This was an action of trespass brought by William J. MacDermott, as the father and next friend of Frank N. MacDermott and in his own behalf, against the city of Philadelphia, to recover damages for the injuries to the son alleged to have been due to the negligence of the defendant.
In the spring of 1908 the city of Philadelphia entered upon the construction of a new concrete bridge to replace an old one on Columbia avenue between Thirtieth and Thirty-first streets. At this point Columbia ave
On July 18, 1908, at about five o’clock in the afternoon, the plaintiff, Frank N. MacDermott, a boy about thirteen years of age, attempted to cross Columbia avenue diagonally from Thirty-first street on the north to Patten street on the south (the-latter being a small street between Thirty-first and Thirty-second streets running south from and at right-angles with Columbia avenue). After leaving the sidewalk on the north side of the street he climbed up on one of the piles of stone, and seeing a car approaching eastward he stood there to allow it to pass. Immediately after the front part of the car had passed him the stones gave way beneath his feet; he slid under the car and the wheels passed over his legs, causing the injuries complained of. It was testified that both sidewalks on Columbia avenue were kept open for the use of pedestrians, and that persons desiring to cross that street at this point had walked over these stones, their travel making a sort of path or footway across the same.
The trial judge entered a non-suit, which the court in banc refused to take off, and the plaintiff has ap-. pealed, assigning first, that the court below erred in refusing to take off the judgment of non-suit, and next,
In entering the non-suit the trial judge, inter alia, said: “The entire street on Columbia avenue from Thirty-first to Thirty-second was shut off to traffic, cars on one track, the east-bound track, were permitted to go through, but nothing else was permitted to pass there, no vehicles of any kind were permitted on the street. The north side of the street was blocked, probably from Thirty-first street to nearly Thirty-second with piles of crushed stones extending from very near the curb all the way over the first car rails......So far as appears the crossing at Patten street was obstructed — that is the crossing at the end of Patten street for that street does not cross Columbia avenue— if there was a crossing there, and there is no testimony to show that there was, but the crossing at Thirty-second street appears to have been open and perfectly safe......The. City is of course bound to keep its streets and sidewalks in a reasonably safe condition. The sidewalks of the street were apparently perfectly safe. The city has the right to shut off the street when necessary to make repairs......In such cases it is impossible for pedestrians to cross the street haphazard as they are accustomed to do at other times. In this instance there was nothing illegal in the city permitting the stone to be piled on the street, nothing illegal in the street being closed to traffic. Therefore, what the city omitted to do I do not see. I see no negligence on the part of the city, and therefore grant the motion for a non-suit.”
A reading of the testimony satisfies us that the position taken by the trial judge was justified and that the court below committed no error in refusing to take off the non-suit. The testimony was too vague and indefinite to sustain a finding that a defined path or way over the pile of stones had been created or existed for such
^ The judgment is affirmed.