# Hutchison v. MONTGOMERY WARD & CO. > Supreme Court of Pennsylvania · January 16, 1950 · 364 Pa. 126 URL: https://www.frixlaw.com/law-library/cases/9714993 ## Case - **Full name:** Hutchison, Appellant, v. Montgomery Ward and Company Et Al. - **Court:** Supreme Court of Pennsylvania - **Decided:** January 16, 1950 - **Citations:** 364 Pa. 126; 70 A.2d 838; 1950 Pa. LEXIS 326 - **Precedential status:** Published - **Opinion:** Dissent by Linn - **Judges:** Pee, Maxey, Drew, Linn, Stern, Patterson, Stearns, Jones - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9714993 ## How later opinions describe it (automated extraction) - concluding that trial counsel Commonwealth v. McDermitt, 66 A.2d 810, 814 (Pa. Super. 2013 ## Opinion text Dissenting Opinion by Mr. Justice Linn: I think this decision creates an undesirable exception to the general rule imposing liability on the possessor of land for damage resulting from dangerous conditions negligently allowed to remain on the land and that the court reaches its conclusion by taking an erroneous view of the evidence. 1. The erroneous view of the evidence results from the failure to apply the rule that a plaintiff who has been deprived of his verdict by a judgment n. o. v. is entitled to have the reviewing court consider only the evidence which supports the verdict and to give him the benefit qf every inference of fact reasonably deducible *139 from the evidence: Sorrentino v. Graziano, 341 Pa. 113 , 17 A. 2d 373 (1941); Phillips v. Phila. Transp. Co. et al., 358 Pa. 265 , 56 A. 2d 225 (1948). The effect of not applying the rule will appear in comparing an extract from the opinion with the evidence. The opinion states, “The evidence does not support the contention that it was a mass of ice and snow permitted by appellee to collect in the gutter or on the ledge of the building which fell and injured appellant. On the contrary, her own evidence establishes that it was a part of the normal accumulation on the roof itself that fell, covering an area of about two square feet. Any hazard created by the extraordinary snowfall on December 24 had been eliminated by melting. The depth of the snow had been reduced to three inches and there was an additional inch of snowfall on December 27, making a total of only four inches of snow on the roof on December 29, the date of the accident.” Comparing that with the evidence, and beginning with the statement that “the evidence does not support the contention that it was a mass of ice and snow permitted by appellee to collect in the gutter or on the ledge ...” I call attention to testimony which should make it impossible for this Court to reach that conclusion. It is agreed that a mass of snow and ice fell on plaintiff during a thawing temperature ranging from 36 to 42 degrees the afternoon of December 29; the opinion describes it as “perhaps a bushel in quantity.” It is not disputed that it fell from the ledge where the appellee had permitted it to accumulate; though it could easily have been cleared off before as it was cleared after the accident, as defendant’s witnesses testified. Some idea of the accumulation and the location from which it came, may be derived from the fact that what fell on the plaintiff exposed a space on the slope of the mansard roof of “about two square feet,” as described by witnesses who saw it while standing on the sidewalk below. Defendant’s witnesses testified that, after the accident, *140 inspection revealed an accumulation of 3 to 4 inches of snow on the lower part of the roof near the edge (N. T. 80, 81, 102). Therefore, since there was only-one inch of snowfall between December 24th and December 29th, much of the snow must have been on the ledge four or five days. 1 I must also disagree with part of the next statement in the opinion, that “Any hazard created by the extraordinary snowfall of December 24 had been eliminated by melting. The depth of the snow had been reduced to three inches and there was an additional inch of snowfall on December 27, making a total of only four inches of snow on the roof on December 29, the date of the accident.” This Court cannot, with due regard to the rule, properly make such a finding of fact. Whether melting had eliminated the hazard would ordinarily be for the jury if nothing else were involved, but here there is additional evidence on the subject for the jury’s consideration. The jury could find from the evidence (and such a finding is implied in the verdict) that the foreseeable danger continued and was increased by the alternate freezing and thawing of the accumulation of snow and ice on the ledge and in the gutter and alongside the slope of the mansard roof on which the patch two feet square was exposed by the mass which fell on plaintiff. Indeed it was the melting over a period of days which changed otherwise harmless snow into a mass containing chunks of ice as large as an apple and icicles 3 to 4 inches in width and 4 or 5 inches long (N. T. 14, 28). Even after part fell on plaintiff, there still remained a dangerous accumulation of it on the ledge which defendant promptly removed. Mr. Holliday, *141 defendant’s assistant manager, testified that the building is in “the most active business portion of the city,” which is also a fact of importance in considering the measure of care required of defendant to persons using the sidewalk in front of the building. 2 Mr. Holliday also testified: “There was snow on the roof; there was snow on the sloping roof up there. There was a patch there that had broken loose and come down. I would say a patch possibly two feet square. ... It was between the two dormers on the left hand side of the building as you start in.” Referring to the precise location of the patch, in order to describe the place on the mansard slope from which the mass fell, he said it was “right up from the edge of the slate. It started up the roof a little ways but it started in front.” Mr. Patterson, an eye witness and disinterested bystander, testified, “I don’t think a bushel basket would have held what was in this bunch of snow and ice”; he saw the “chunks of ice.” There were corroborative eye witnesses. Reading the evidence which supports the verdict, this court should reject the inferences made in the majority opinion; they should be rejected because they are opposed to the facts which the jury had the right to find and doubtless did find as the basis of its verdict. It is beyond dispute that on the thirteen inch ledge extending outward from the sixty degree slope of the mansard roof, twelve feet high, there remained, following a heavy snow of a week before, an accumulation of snow and ice partly lying against the slope, that had *142 been forming in thawing and freezing temperatures for several days during which only one inch of snow fell. By means of the dormer windows, this accumulation, which was near the windows could easily have been cleared off, as it was later cleared. One of defendant’s witnesses, Derewecld, testified that after the accident he cleared away the accumulation by coming out of the dormer window and walking “the ledge.” Though such removal is not evidence of negligence it is evidence of-accessibility to the roof. Confronted with that evidence supporting the verdict, this Court should not disregard but should apply the familiar rule accepting the evidence supporting the verdict; and rejecting what is inconsistent with it; it would then be impossible to say, as the Court does say, that “the evidence does not support the contention that it was a mass of ice and snow permitted by appellee to collect in the gutter or on the ledge. . . .” 2. The decision creates an undesirable exception to the general rules of liability of the possessor of land. The rules are stated in sections 364 and 368 of the Restatement, Torts: Section 364 states, “A possessor of land is subject to liability for bodily harm caused to others outside the land by a structure or other artificial condition thereon, which the possessor realizes or should realize as involving an unreasonable risk of such harm, if (a) the possessor has created the condition, . . .” Section 368 states, “A possessor of land who creates or maintains thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact therewith while traveling with reasonable care upon the highway, is subject to liability for bodily harm thereby caused to them.” Comment a states, “a. Danger due to natural causes. In order that the rule stated in this Section shall apply, the condition must not only be one which *143 a reasonable man would recognize as involving an unreasonable risk to properly conducted traffic upon an adjacent highway, but also it must have been created by the possessor or his predecessor in possession or by someone acting on their behalf or by their permission after the highway has been dedicated. If the condition is so created, it is not necessary that it involves unreasonable risk when created. It is enough to subject the possessor to liability that he knows or should know that it has become unreasonably dangerous.” Defendant should be held responsible for the artificial condition on the land resulting from the construction of the projecting ledge of the mansard roof in such manner as in the winter season to catch and accumulate snow and ice which, if not removed, may fall upon users of the sidewalk. It is no defense to say that the roof is constructed in the usual way; it is foreseeable that an artificial condition, though normally harmless, may in winter time become dangerous to sidewalk users. It therefore becomes the duty of the occupier to exercise reasonable care to avoid harm to them, and where, as here, the structure is “in the most active business portion of the city,” the measure of care is correspondingly greater than it would be in some remote or less frequented place. The application of the rule is illustrated in many of our cases. Very recently in Reedy v. Pittsburgh, 363 Pa. 365 , 69 A. 2d 93 (1949), in which a number of cases on the subject were cited, we held liable one who collected the rain water from his roof into a single down-spout and discharged it over the sidewalk thereby creating a dangerous condition during winter weather. There is no difference between that case and this to justify the application of a different measure of liability in this case. The verdict in the present case implies that there was sufficient time between the heavy snowfall of some days before and the afternoon of plaintiff’s injury, to put defendant on notice of the dangerous con *144 dition along the ledge overhanging the sidewalk. The general subject is considered in Ward v. Pittsburgh et al., 353 Pa. 156 , 44 A. 2d 553 (1945); Zieg et vir v. Pittsburgh, 348 Pa. 155 , 34 A. 2d 511 (1943); Whitton v. H. A. Gable Co., 331 Pa. 429, 431 , 200 A. 644 (1938); Gross v. Pittsburgh, 243 Pa. 525 , 90 A. 365 (1914); Green v. Hollidaysburg, 236 Pa. 430 , 84 A. 785 (1912); Holbert v. Philadelphia, 221 Pa. 266 , 70 A. 746 (1908); Brown v. White, 202 Pa. 297 , 51 A. 962 (1902) ; Diehl v. Fidelity-Philadelphia Trust Co. et al., 159 Pa. Superior Ct. 513 , 49 A. 2d 190 (1946). The majority quote from Richey v. Armour, 293 Pa. 127, 129 , 141 A. 841 (1928). It is true that in that case we said, “Dripping eaves are a concomitant of bad weather universally. Gutters along the edges of eaves will clog up from ice and snow and overflow under certain weather conditions. This is inherent in the nature of eaves and gutters, just as it is in roofs without them, and their maintenance could not ordinarily be held negligent.” But the next sentence was: “But if they should create a condition of danger which is obvious and exists for so long a time as to visit the owner of the premises with knowledge that some one may be hurt because of the condition, he might be visited with culpability; . . .” The evidence, in the present case, as I have said, is sufficient to support the finding implied in the verdict that the condition resulting in plaintiff’s harm existed long enough to put defendant on notice. The majority opinion states, “It was incumbent on appellant to show some unusual condition existing before the accident that would lead appellee, through its employees, in the exercise of reasonable ordinary care, to believe that additional precautions were required.” I cannot agree with that. I think the plaintiff was not bound to show “some unusual condition existing before the accident . . It was necessary only to show that in ordinary circumstances, in ordinary winter weather, *145 conditions on or about tlie building, whether resulting from rain, snow or ice, if not cared for created an unreasonable risk of injury to persons lawfully on the sidewalk. Such conditions and their probable consequences are readily foreseeable. If we apply the rule that the evidence must be read in the sense most favorably supporting the verdict, the evidence leaves no doubt that the heavy snowfall took place five days before the injury; what should have been foreseen was that, in the intervening five days of alternately thawing and freezing weather, the accumulation of snow and ice on the ledge, plainly visible from the sidewalk, might slip down and do harm. See comments c. d and e to Section 302, Restatement, Torts, 3 charging knowledge of the normal forces of nature. The majority opinion refers to the rule of absolute liability. The verdict of the jury was not based on any theory of absolute liability, but on a simple allegation of negligence amply supported by the evidence. Mr. Justice Horace Stern and Mr. Justice Jones concur in this opinion. The occupier is of course entitled to a reasonable time to remove snow after it has fallen. In Beebe v. Phila., 312 Pa. 214 , 167 A. 570 (1933), it appeared that the ordinance allowed six working hours after the snow ceased. There was no such ordinance in Butler, where, of course, the jury would be called on to consider what the reasonable time would be. For example, in Pope v. Reading Co., 304 Pa. 326, 331 , 156 A. 106 (1931), Mr. Justice Maxey said. “On account of the fact that ordinarily more people pass on the sidewalk in front of one’s property than are ever likely to pass over or congregate on a lot alongside of one’s property, the person in possession of property is held to a higher degree of care in respect to the safe-guarding of a wall or other structure in front of that property and near a street or footway than he is to his wall or structure not adjoining a public highway or footway.” Section 302 provides: “A negligent act may be one wbicb: . . . (b) creates a situation which involves an unreasonable risk to another because of the expectable action of the other, a third person, an animal or a force of nature.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9714993. Public record. Not legal advice.