#### Hanson *v.*Warren Borough.

There is no liability on the part of a borough, for personal injuries inflicted upon a person who, while walking in broad daylight, slips and falls upon a small ridge of ice on a sidewalk, formed by water dripping from an awning which did not extend far enough over the pavement to carry the water into the street.

If the alleged ridge of ice was dangerous, the action should have been against the owner of the awning by which it was caused, and not against the borough: Per Curiam.

May 4, 1888.

Error, No. 352, Jan. T., 1888, to C. P. Warren Co., to review a judgment of compulsory non-suit in an action of trespass on the case by Christena Hanson against the Burgess and Town Council of the Borough of Warren, at March T., 1887, No. 76. Trunicey, Green and Clark, JJ., absent.

At the trial, before Brown, P. J., it appeared, from the testimony offered on behalf of the plaintiff, that, on Dec. 11, 1886, at about 4 o’clock in the afternoon, the plaintiff, a woman, some seventy-eight years of age; slipped on a ridge of ice on a sidewalk in Warren borough, the ridge being formed by water dripping from a wooden awning which did not extend over the sidewalk far enough to carry the water into the street.

*596Robert Foster, a policeman, testified, in part, as follows: “You say that the awning is in the condition so that the water dropping from the edge of the awning, drops onto the sidewalk and freezes? Yes, sir. Is that the cause of the edge of ice on which this plaintiff slipped and fell ? Yes, sir, I believe it is. Now, you say that the awning has been in that same condition ever since you have been on the police force, which is three years ? Yes, sir, as far as I know. State whether or not the same state of weather that existed at the time of the injury, or a short time prior thereto, would cause this same obstruction on the sidewalk, at that same place ? Well, I suppose it would; I never saw the sidewalk exactly in the same condition it was at the time of the accident, that I know of. ... . How far from the outside edge of the walk was the center of that ridge of ice ? I should think it was about two feet. Did you ever make any measurement to ascertain how far from the edge of the sidewalk the water strikes, when it drops from the awning at this place? Yes, sir. What distance is that? I measured it by my foot; the distance is about twenty inches. Then you say about twenty inches? Yes, sir, I should judge about that; may be more or less.”

Cross-examined: “ I understood you to say that it had been raining on Saturday? Yes, sir, it was raining. And freezing? Yes, sir. And raining at this time? Yes, sir, it was raining but not very heavy, kind of a cold rain. Did it rain the night previous ? No, not that I know of; it broke up through the day, I can’t tell you what time in the day, because I slept in the daytime and was up nights. As it rained, the water ran down and formed this crust of ice? Yes, sir. There was no snow or ice between this crust of ice and the inside of the walk? No, sir. That was clear? Yes, sir; it was wet-for about a foot or so, then the balance was dry and dusty inside. Can you tell us how much space there was between the crust of the ice and the inside of the walk, the clear walk? About eight feet, I think. About eight feet clear from the ice? Yes, sir, from the ice; it is about a ten-foot walk, and I think about eight feet clear walk from the ice to the railing. It is a very wide walk ? Yes, sir. Stone walk? Yes, sir. Very smooth walk? Yes, sir. You saw this old lady when she fell ? Yes, sir, I was standing between her and the outside of the walk. You didn’t see her when she came out of the store ? No, sir; she came from towards the Carver House. You didn’t see her when she came out of the store ? No, sir. When you saw her she was coming towards you ? Yes, sir. You saw her take three or four steps on the ice before she slipped ? Yes, sir, I think she stepped two or three times, then she seemed to slip right down.”

IT. Lilly, testified, in part, as follows: “ On what part of that ridge of ice was it where she fell, about the center? Not the center; my impression is now that she was further down towards the lower end than the center. About what was the width of that row of ice *597at the place where she fell ? It strikes me it was near the thickest part of it, that would be my impression now; I would say that the thickness where she fell, according to my present recollection of it, would be from the extreme edge of the ice clear over — it would spatter out and spread — I would say it would be a foot and a half any way. About how thick in the center? At that place, I wouldn’t be positive about it, but it would be my impression that it would be about four inches thick. ... I would be of the impression that in the thickest place it was over four inches.”

The plaintiff testified, through an interpreter, in part, as follows : “ Which way did she start to go when she came out of the store ? As near as I can give the literal meaning of what she says, there were a number of men on the street, and she didn’t really start one way or the other, but was looking to see which way she could go, to get past the crowd. What caused her to fall ? The walk was slippery, and she fell on the walk.”

On cross-examination, she testified, in part, as follows : “ Which side of you were the men'standing ? Some of them were just in front of the door, and the others were a little to the right. Did you know any of those men ? No. How many were there ? There was a crowd of them, she couldn’t tell how many. What were they doing ? Stood there talking. Did you speak to any of them, or ask them to move? She did not. What did you do when you went out of the door of the store ? She stopped to determine or find out which way she was to go, and while she was doing so, she slipped and fell backwards. Were you standing still when you fell ? She thinks she was just about to move as she slipped; she had been standing still just before that.”

Peter Holmes testified, in part, as follows: “ Did you see Mrs. Hanson when she fell ? Yes, sir. . . . Did you notice what it was that caused her to fall ? The ice. What ice ? From the water dripping down and freezing on the sidewalk. Dripping down from what ? From the awning. . . . Did she slip up ? She slipped on the ice.”

August Flodine, testified, in part, as follows: “ For how long had that ice been in that condition there ? There was a ridge of ice there pretty much all the time, in the winter time. State whether or not you saw any other persons slipping on this ridge of ice, at any other time? I had at other times. More than once? Yes, sir. How many times ? I can’t tell exactly; I saw one last week.— Objected to. I am speaking about this ridge of ice upon which this woman fell? I didn’t see any one then, not that time. Had you seen any other persons slip upon this ridge of ice before the old lady slipped ? I have before. State if you know about how long that awning has been in the condition that the water from the awning dripped upon the sidewalk, about two feet from the outside edge? It has pretty much ever since I came to work for Henry, that would be twelve years next May. State whether or not you *598have noticed ridges of ice similar to this, previous to the time when the old lady fell? I had. How often? Pretty much all the time. What do you mean by all the time? In the winter.”

On cross-examination, the witness testified, in part, as .follows: “ Had it been raining that day ? I think it was raining during that day. Was it raining pretty hard ? I don’t remember. The water run down and froze on the ice in the form of crust. There was ice under there before; it didn’t freeze that day, the ridge was there. . . . You cleaned off the walk? I didn’t, the other clerk did. There wouldn’t be much snow on the walk under the awning? No, not much snow ; he sweeps it every morning; I don’t pay much attention to it. What do you mean by sweeping the dirt over it, do you mean sweeping the dirt out into the street? Yes, sir. You don’t mean this particular piece of ice, but you mean ice formed at other times ? Whatever there is to sweep. You don’t mean this particular piece of ice; you don’t know how long this ridge of ice was there? No, sir, I could not state. And all that you noticed it, was on the day of the accident? Yes, sir.”

Wm. Schnur, an attorney-at-law and member of the borough council, testified, in part, as follows : “ How far is your office from the place where this accident occurred ? About half a block, I should judge, probably eight or nine stores east. State whether or not during that winter, prior to the accident, you were frequently past this place where the accident occurred ? I presume I was ; I don’t know how many times. You go to the post-office that way, do you not? Yes, sir, I did then. And to the court house ? Yes, sir.”

Cross-examined: “ Was your attention called to this accident ? I didn’t hear of this accident until some days afterwards..... State whether your attention was called to this condition of the walk being out of repair ? No, sir. Or did you observe it ? No, sir. Were you on the sidewalk committee ? No, sir ; on the street committee.”

Re-direct: “ I understood you to say that you had observed the water running off the awning and freezing on the sidewalk ? I had at other times. Before this ? Well, yes, during cold weather, and especially this time of year ; when the water strikes the stone, the frost will freeze it. Will you tell us how far from the edge of the sidewalk the water dropped upon the sidewalk, from the outside edge ? I should think from seeing it, probably a foot and a half, something like that. And you had noticed the water dropping along there before this and freezing ? I had seen it, as I said, during rainy spells in cold weather and sudden freezing.”

A. A. Davis, another member of council, whose place of business, that of a bookseller, was three doors east, testified that he passed the place of accident perhaps once a week.

C. Smith, another member of council, testified, in part, as follows : “ Where is your place of business in relation to the store or *599the place where this accident happened ? Mine is across the street and southeast of it. In plain sight of the place ? Yes, sir. State whether or not you were frequently past this place during the winter of 1886? I was. The place where the accident occurred? Where it is claimed to have occurred, yes, sir. Who was burgess, at that time ? Mr. Albert Morck. He is now dead, isn’t he? Yes, sir. Where was Mr. Morck’s place of business at that time, and prior to that ? His was west nearly a square, on thfe corner opposite the Carver House. Where was his place of residence ? His place of residence was at the other end of town, north. In going to his place of business from his residence, state whether or not he had to pass this place? He didn’t have to, I presume he passed. State whether or not you frequently saw him pass along this walk, where this accident occurred? Yes, sir,-I have seen him pass.”

Cross-examined: “ You didn’t see him go past this place on Dec. 11, did you? I have no knowledge of it, no, sir. Was your attention called to the accident at all? No, sir. Did you know of it? No, sir, not when it happened, until afterwards. Was your attention called to this sidewalk ? No, sir.”

The court granted a compulsory non-suit, the court below charging the jury, in part, as follows, by Brown, P. J.:

“According to the testimony of the witnesses, it was thawing that day, and the water, as it dripped, accumulated, and, from the frost in the stone, or otherwise, the ice formed such as has been mentioned, and on the same day that the accident occurred to the plaintiff. We fail to recall any testimony that would go to show that the officials of the town were negligent, so far as that particular obstruction was concerned. Had the testimony shown that the ridge which caused this injury had been one of long-standing, then it would have been the duty of the town council to have known of it, and put it in proper repair. But, with the obstruction formed, as the testimony of the plaintiff shows this was formed, just as the water ran off and then froze, we think there is no evidence from which a jury can charge the borough with negligence. Hence we feel compelled to say to the jury, although reluctantly, that a compulsory non-suit must be granted, and you are discharged from rendering a verdict in this case.”

The court subsequently discharged a rule to show cause why the non-suit should not be taken off The plaintiff then took this writ.

*The assignments of error*specified the action of the court, 1, in entering a compulsory non-suit; 2, in discharging the rule to show cause why the non-suit should not be taken off; and, 3, in not making absolute the rule to show cause why the non-suit should not be taken off

*600
      *O. C. Allen,*with him *Geo. H. Higgins,*for plaintiff in error.

That the ridge of ice on which the plaintiff slipped and fell was dangerous, is fully established both by the description of it by the witnesses, and by the fact that other persons had, previous to the accident to the plaintiff, slipped and fell on the same ridge, and also on similar ridges in the same place, which were formed from the same cause.

In McLaughlin *v.*Corry, 77 Pa. 113, the supreme court say: “ In the case in hand, the plaintiff charges that, through the default of the officers of the city of Corry, the ice and snow had been permitted to accumulate upon the sidewalk in question, in such a manner as to be dangerous to foot-passengers, and, by reason thereof, he fell and received the injuries of which he complains. Whether this were so or not, was a question for the jury, and as such the court should have submitted it.”

If the obstruction was one of such long duration as to be generally observable, the city would be charged with constructive notice thereof: McLaughlin *v.*Corry, above; Dotton *v.*Albion Common Council, Mich., 15 N. W. Rep. 46.

The evidence to establish constructive notice not only shows that the ridge of ice had been there nearly all winter, but also that a similar ridge accumulated there each winter, and from the same cause as the ridge on which plaintiff fell. The borough authorities knew that, even had there been no ridge of ice prior to the day that plaintiff was injured, it would accumulate that day, considering the state of the weather.

Two of the town council did business in plain sight of this ridge of ice. This would visit the borough with notice: Dotton *v.*Albion Common Council, above.

The awning over this sidewalk is, per se, a nuisance, and the borough authorities had no right to allow it to remain in the condition in which the evidence shows it to have been. The defendants ■ would be liable, even had the ridge of ice been formed the very day of the accident. Whenever it rained or thawed in the winter-time, it was notice to the defendants that a ridge of ice was being formed on the sidewalk at the place where this accident occurred, and it was their duty to either remedy the cause, or, if they allowed it to remain, to remove the ridge of ice. In failing to do this, the borough authorities were clearly negligent.

*Wm. Schnur, D. I. Ball,*and *C. C. Thompson,*for defendant in error,

not heard. — 1. Mere slipperiness of the ice is not such a condition as to render the borough liable: Dehnhardt *v.*Phila. 15 W. N. C. 214; Mauch Chunk *v.*Kline, 100 Pa. 119; Billings *v.*Worcester, 3 Am. Rep. 460. The evidence in this case shows that the accident was caused by the slipperiness of the ice.

2. Plaintiff’s evidence disproves knowledge on the part of the borough officials of any defective condition or want of repair in the sidewalk.

*601May 25, 1888.

3. There was no constructive notice to the borough authorities of any such defective condition or want of repair in the sidewalk complained of, if any such existed, as to render the borough liable:

(a.) The ice had not been there long enough nor was it sufficiently prominent to attract attention or to make constructive notice: McLaughlin *v.*Corry, 77 Pa. 109; Ralpho Twp. *v.*Moore, 68 Pa. 404; Otto Twp. *v.*Wolf, 15 W. N. C. 83.

(b.) The borough was not liable on account of the condition of the awning, as the right of the borough to regulate the awning is discretionary: Carr *v.*Northern Liberties, 35 Pa. 324; Grant *v.*Erie, 69 Pa. 420; Fair *v.*Phila., 88 Pa. 309; Collins *v.*Phila., 93. Pa. 272; McDade *v.*Chester, 20 W. N. C. 462.

(c.) If the awning, attached to the store, in any way remotely contributed to the cause of this accident, then it is a cause outside of the street. Notice of a cause outside, which was likely to produce a defect in the street, is not notice of the defect itself: Billings *v.*Worcester, 3 Am. Rep. 460.

In any event, there is no liability on the part of the borough, for the reasons stated in West Chester *v.*Apple, 35 Pa. 286.

There was nothing to submit to the jury, and the non-suit was properly entered: Pa. R. R. *v.*Fries, 87 Pa. 234; Adams Express Co. *v.*Sharpless, 77 Pa. 516; Silven’s Executors *v.*Porter, 74 Pa. 448.

Per Curiam,

The court below did well to non-suit the plaintiff in this case. If municipalities are to pay for every injury that happens to persons slipping on trivial ridges of ice or snow that occur on their streets or roads during the winter-time, their usefulness will be seriously impaired and their citizens burdened with an unendurable amount of tax. The borough was in no default, and, even if the alleged ridge of ice was dangerous, the action should have been brought against the owner of the awning by which it was caused, and not against the borough.

The judgment is affirmed.

Note. — In Burns *v.*Bradford City, 137 Pa. 361, the plaintiff slipped and fell on a plank sidewalk. The walk was four feet wide and the plaintiff testified, but without corroboration, that one side of the walk had been raised one foot by the action of the frost. Another witness, however, (the admission of whose evidence was assigned for error, not noted in the official reports, but in 27 W. N. C. 201) testified that she had fallen, two or three weeks previous to this accident, at what she thought was the same place which was then in exactly the same condition as the walk described by the plaintiff. It was held that the evidence was insufficient to charge the city with notice of any defect in the sidewalk, the court saying, in an opinion, by McCollum, J.: “A municipal corporation is not an insurer against all defects in its highways, but it is answerable for negligence in the performance of its duties in the construction and care of them. For a defect arising in them without its fault or neglect, it is not liable, unless it has express notice, or the defect be so notorious as to be evident to all passers. If a defect be such that it is discovered by only one of a thousand or more persons who pass it in the ordinary pursuit of business or pleasure, can it be said to be notorious, or such a defect as the municipality is bound to take notice of? We think not.”