Mintzer v. Greenough , 192 Pa. 137 ( 1899 )

Opinion by

Mb. Chief Justice Stebbett,

While the manner in which the defendants sought to perfect their appeal, etc., after .the record was sent up here, is irregular and unsatisfactory, we all agree that in view of the special circumstances of the case—especially the illness of the learned trial judge, etc.—the motion to quash the appeal should not prevail; and the motion is therefore denied.

Without unnecessarily consuming time in referring here to the evidence relied on by the parties respectively, it is sufficient to say that our examination of the record has not disclosed any error in the proceedings, leading up to and including the judgment, that would justify us in sustaining any of the specifications.

In view of the evidence, all of the nine points for charge presented by the defendants, except the fourth, were rightly refused by the learned trial judge. In affirming their fourth point, he properly instructed the jury in the words thereof thus: “ A person walking along the highway is required to exercise a reasonable watchfulness over his feet, and if the jury believe that this plaintiff, at the time of the accident, did not exercise such watchfulness, she cannot recover.”

Viewed in the light of this instruction, the verdict in plaintiff’s favor necessarily implies a finding by the jury that she did exercise such “reasonable watchfulness,” in walking on the pavement in front of defendants’ house on the east side of York street,—the point at which she was injured,—and hence she was not guilty of contributory negligence.

The question of defendants’ neglect of duty, in not keeping the pavement in front of their “ house in such order and condition as to permit persons traveling over and along said pavement, .... to do so safely, etc., was fairly submitted to the jury with instructions so full and adequate that no just exception can be taken thereto.

The subject of complaint in the first specification is that “the court erred in entering judgment in favor of the plaintiff, inasmuch as her statement .... sets forth no cause of action, but purports to be a breach of duty in failing to keep a part of the highway in repair; whereas there is no duty in law incumbent on defendants or any of them to keep the highway in repair.”

If this is intended to appty to the sidewalk on which plaintiff was injured, it is not correct as a legal proposition. It is the primary duty of property owners along a street, to keep in proper repair the sidewalk in front of their respective properties: Lohr v. Phillipsburg, 156 Pa. 249; Duncan v. Philadelphia, 173 Pa. 554; Pittsburg v. Fay, 8 Pa. Superior Ct. 275; Pittsburg y. Daly, 5 Pa. Superior Ct. 532. Hence it is that, owing to this primary liability, many cases exist in this state, in which, after recovery from the municipality, the latter has successfully recovered over from the property owner on account of his breach of his primary duty to keep the sidewalk in a safe condition. Among these are Reading v. Reiner, 167 Pa. 41, Brookville v. Arthurs, 152 Pa. 334, and s. c. 130 Pa. 501. Several statutes in this state also recognize the duty of the property owner to keep his sidewalk in a safe condition. By Act of March 25, 1805, 4 Smith’s Laws, 233, sec. 5, councils were authorized by ordinance to compel property owners to pave the footwalks; and by the Act of April 10, 1826, P. L. 326, sec. 2, it was made the duty of property owners to pave the foot-way in front of their respective properties, and to keep the same in repair.

To the same effect are the following acts: April 16, 1838, P. L. 626, sec. 3; April 16, 1840, P. L. 412, sec. 9; March 22, 1865, P. L. 562, sec. 1.

The averments in plaintiff’s statement are quite sufficient to entitle her to recover, and the evidence tended to sustain all that were material to her case.

The second and last specification, complaining of the refusal of the court to permit “the jury to be taken to the place in question and inspect the pavement,” cannot be sustained. The request of defendants was an appeal to the sound discretion of the court, and there appears to be nothing whatever in the record that would justify us in saying that the discretion vested in the court below in that regard was improperly exercised.

We find nothing in any of the assignments of error that require further notice. They are all overruled and the judgment is affirmed.