Duncan v. City of Philadelphia , 173 Pa. 550 ( 1896 )

Opinion by

Mr. Justice Fell,

The under side of the iron grate which covered the coal hole jato which the plaintiff fell had become so worn at the edge where it rested on a stone ledge that it slipped out of place when she stepped on it. The ledge had also become worn, increasing the danger of the displacement of the grate. These defects were not apparent, and could not have been seen by any one on the pavement. The grate projected half an inch above the surface of the pavement, and had occasionally been displaced by passers-by who struck it with their feet. How often this had occurred before the plaintiff’s injury does not clearly appear from the testimony, but giving full effect to all the testimony in her behalf it had not occurred more than two or three times, and had not resulted in injury to any one. By the defendant’s fourth point the court was asked to charge that in the absence of actual or implied notice of the condition of the hole the city was not bound to examine it in order to ascertain its condition, and that notice of its defective condition could not be implied if the defect could not be seen without removing the cover and making an examination, and that in tbe absence of notice the city was not bound to do this. This is the fair effect of a not clearly expressed request for instructions to the jury, and it should have been affirmed.

It is the duty of a municipality to exercise a reasonable supervision over its sidewalks; but as the first duty in relation to them rests upon the property owner, and that of the city is secondary only, it is not liable for defects without notice, actual or implied, of their existence. As was said in the recent case of Lohr v. Philipsburg, 156 Pa. 246, a municipality is not obliged to seek for defects, but to be “ vigilant to observe them when they become observable to an officer exercising a reasonable supervision.” The instruction on the subject in the general charge was clear and accurate as far as it went, but it did not cover the point raised or remedy the error complained of. The learned judge told tbe jury that to impose liability the city must either have had actual notice of the defect, or the defect must have been of such a character or of so long standing that the city must be presumed to have had notice, but the character of a defect of which notice will be imputed was not pointed out.

The fifth point, which is the subject of the fourth assignment of error, is defective in asking for a peremptory direction for the defendant. This could not have been affirmed, as .there was testimony of actual notice. The question presented by the eighth assignment was not raised by the testimony.

The third assignment of error is sustained, and the judgment is reversed with a venire facias de novo.