Tripp v. Borough of Renovo

Citations

• 75 Pa. Super. 417
• 1921 Pa. Super. LEXIS 33

Syllabus

<p>Negligence — Municipalities—Icy streets — Pleading and proof — ■ Allegata and probata — Variance.</p> <p>In an action against a municipality for personal injuries caused by a fall on an icy street, the evidence established that the plaintiff was walking along the street in question before daylight on a cold winter morning. The street was cut along a hillside and the water-main of the defendant was buried in a ditch on the upper side of the street. This main had broken a considerable time before the accident and the borough, after notice, had failed either to find the exact location of the leak or to repair it. The plaintiff was walking in the middle of the street and moving carefully because he knew there was danger of falling on the ridges and hummocks of ice resulting from the constant freezing of the water coming from tbe broken main and flowing over tbe sidewalk on the upper side of the street and the roadway of the street itself. The plaintiff walked in the middle of the street because in his judgment it was less dangerous than the sidewalk above. While standing aside to permit a vehicle to pass he slipped on the ice and was seriously injured.</p> <p>Held, that the case was for the jury and a verdict for the plaintiff will be sustained.</p> <p>In such case, there was no material variance between the pleadings and the proof, where the plaintiff’s statement alleged that the ice had accumulated on the street in large ridges and hummocks which, after notice, the municipality had failed to remove and that the plaintiff while passing along the road in question, to avoid a passing sleigh, stepped to the side of the road on ice that was smooth and slippery and fell and received the injury complained of.</p>