MacDermott v. Philadelphia

Opinion by

Mr. Justice Moschzisker,

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 avenue runs east and west at right-angles with Thirty-first and Thirty-second streets, and there is a double-track railway operated upon it, the east bound track being upon the south side of the road-bed. In the course of the work it became necessary to place machinery, tools and building materials for use in and about the construction of the bridge on the cartway or road-bed of Columbia avenue between the curb on the north side and the southern or east bound railway track, between Thirty-first and Thirty-second streets, which resulted in the closing of that portion of the street to all traffic. Among the material thus deposited was a large quantity of grout or small stones used in concrete work, in piles two and a half or three feet high along the north side of the east-bound track.

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, that error was committed in refusing evidence offered to prove that certain changes had been made in the street after the accident.

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 a length of time that the city was bound to have taken notice and guarded against its dangers. The breach averred and complained of in the statement of claim was that the city had failed in its duty to keep the street in proper and safe condition and had permitted a continuous pile of “small stones, dirt, sand and other materials to be placed on and over the road-bed without any prohibition or warning, necessitating a crossing or passage of said material by persons crossing said Columbia avenue, and inviting its use and crossing over the same to children and persons of immature mind and judgment. So that----when said plaintiff.....attempted to pass over the same....., by reason of the negligent and improper manner in which said material was placed and piled....., it suddenly gave way beneath him precipitating him under a passing trolley car .....” The theory of the defined pathway seems to have been an afterthought, and as we have already said, the evidence was not sufficient to sustain it. The city was not bound to anticipate the possibility that some one might leave the open sidewalk which it was maintaining and make a diagonal crossing of the street over the pile of stones, when it had left at least one safe crossing a short distance away at Thirty-second street. The municipality was engaged in a public undertaking and the street, except the sidewalk, was closed to traffic ; it provided a safe way to cross, with but little or no inconvenience to pedestrians, and its duty to the plaintiff was no higher in this respect than to others. The circumstances do not bring the present case within the line of authorities dealing with the responsibility of defendants guilty of exposing an invitation to danger to the playful fancy of children. The first specification of error is overruled. It only remains to say that we see no error in the ruling complained of in the second specification, and that is likewise overruled.

^ The judgment is affirmed.