Bucher v. Sunbury Borough , 216 Pa. 89 ( 1906 )

Opinion by

Mr. Justice Elkin,

If the injury in this case had resulted from the general slippery condition of the pavement occasioned by the storm on the Sunday prior to the accident, and nothing else, there would not be such negligence on the part of the defendant borough as to make it liable in damages. The plaintiff in his statement of claim did not alone allege the general slippery condition of the pavement, but averred in substance that it had been so negligently maintained as to make it unsafe and dangerous for traveling purposes; that at the place of accident there were offsets, irregular and rough places which were permitted to become filled with snow and ice to such an extent as to make it unsafe for public use. There was testimony tending to show that these conditions had existed for several weeks, one witness saying all winter, and of course they became more dangerous by reason of the storm which left the borough streets generally in a slippery condition. The learned trial judge carefully charged the jury as to the duty and liability of the appellant under the circumstances. There was no reversible error in the instructions to the jury bearing on this question. The testimony showed that the pavement was in general use on the day of the accident and that a number of people had passed over it that day and on days prior thereto. Under these and other circumstances in the case it was not the duty of the court to say as a matter of law that the plaintiff was guilty of contributory negligence. It was for the jury to say whether the dangers were so obvious as to cause a prudent man to avoid them. This also was a question for the jury, where the court left it.

It is earnestly contended that no liability for damages rests on the appellant borough because in the case o£ Bucher v. Northumberland County, 209 Pa. 618, it was held that said county, an abutting property owner, was not liable in damages for the injuries sustained by the accident. This position assumes that because the' appellee could not recover against the county in that case he cannot recover against the borough in the present case. This does not necessarily follow. In Brook-ville Borough v. Arthurs, 130 Pa. 501, it was held to be the duty of a municipal corporation, having exclusive care and control of its streets, to see that they are kept in a condition that is safe for the passage of persons and property; and if that plain duty is neglected and an injury results by reason of such negligence, the borough is primarily liable to the injured party. It was further held that if as between the borough and a third party the injury resulted from the negligence of the latter he is liable over to the municipal corporation. The right of the appellee to recover in this case is not dependent upon the question of the primary or secondary liability of the borough. In Gates v. Penna. R. R. Co., 150 Pa. 50, the present Chief Justice in discussing this question said: “ The basis of the opinion of the learned judge below and the argument of the appellee is that a township is liable to the plaintiff, and it seems to have been accepted without question that in such case the defendant was not liable. But this does not appear to us to be a necessary or just conclusion. It is opposed in the first place, to the general rule that a party injured by the concurrent tort of two may sue either, and this right is not affected by any circumstances of primary or secondary duties of the tort feasors as between themselves.” It being the duty of a municipality to keep its streets in a reasonably safe condition for those who have occasion to use them by day or night, it follows that if it fails in the performance of this duty it is properly chargeable with negligence and liable in damages for injuries resulting therefrom: Johnson v. Philadelphia, 208 Pa. 182. If, therefore, the defendant borough failed in the performance of its duty to keep, or cause to be kept, its pavements in a reasonably safe condition for public use, it is liable in damages for such injuries as resulted from the negligence complained of, and its liability is not affected by the question of the nonliability of an abutting property owner.

Assignments of error overruled and judgment affirmed.