Brookville Borough v. Arthurs , 152 Pa. 334 ( 1893 )

Opinion by

Me. Justice Stebbett,

The six points for charge, presented by defendant, were evidently intended to elicit instructions applicable to any phase of the case that could be presented by the facts as they might be found by the jury from the evidence before them. All of these points, except the fifth, were affirmed by the court, without any qualification.

In affirming the first point, the learned judge instructed the jury, in the language thereof: “That in order to recover . . . . the plaintiff must show that the defendant was liable to. Mrs. Brosius for the injury complained of, and that the injury was the direct result of the action of the defendant.” In other words, — expressing the proposition affirmatively, — if the jury find that the facts are as stated in said point, the plaintiff is entitled to recover. There was evidence tending to prove the facts of which the point is predicated; and, if the jury found them to be as stated, their verdict in favor of the plaintiff must be regarded as the logical sequence of such finding.

In like manner, the affirmance of the second, third and fourth points wastantamount to affirmative directions to render a verdiet for plaintiff, provided the jury should find the facts and circumstances to have been as stated, qualified and limited in each of said points, respectively. There was some testimony relating to and tending to prove each of these matters; and, under the instructions requested and given, it was the special province of the jury to consider and weigh the evidence, and determine for themselves whether the state of facts — specified in each of said points as authorizing a verdict for plaintiff— really existed or not. If such was not the case, why was the court requested by the defendant to instruct the jury as set forth in said points ?

As requested in the fourth point, the court also instructed the jury, “ That there is no implied liability — on the part of the owner of the property in front of which the defect existed— to the injured party, arising from the mere fact of ownership. Before the lot owner can be held responsible, there must be some negligence on his part, or he must have trespassed upon the sidewalk, by obstruction on the surface, or excavation beneath ; and negligence, obstruction or excavation must have caused the injury.”

The learned judge, in effect, pronounced this good law. It was certainly as favorable to the defendant as he could ask; and, if the jury — finding from the evidence that there was negligence, on his part, which caused the injury, — applied his own rule and rendered a verdict against him, he should not insist that no cause of action was shown. If the testimony was believed, the plaintiff had a good case; and in searching for the proof, it was not necessary to go further than the defendant’s own admissions of negligence, and the evidence as to the resultant injury of Mrs. Brosius in consequence thereof. It is not our purpose to refer in detail, either to the testimony or to the facts which it tended to prove. When this case was here before, we said: “ It is undoubtedly the duty of a municipal corporation, having the 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 thereby injury results to any one, the corporation is primarily liable to the injured party; but if, as between the corporation and a third party, the injury resulted from negligence of the latter, he is liable over to the corporation. . . . While it is true that the borough could not deny its liability for neglect of its general duty to see that the streets and sidewalks thereof are kept in reasonably good and safe condition, it cannot be pretended that the corporation in any way co-operated with the defendant in his neglect to perform the duty which, as between it and himself, he assumed to discharge. As shown by the evidence, the true relation of the defendant to the borough was that a resident property owner, bound by ordinance, and still further by his express promise, to keep the sidewalk in question in good repair. The claim is not for contribution, but to recover from the defendant the amount which the plaintiff was compelled to pay in consequence of his neglect to do what he should have done, and expressly promised to do: ” Brookville v. Arthurs, 130 Pa. 501, 515.

We did not mean, by anything that was said in that case, to intimate that it was necessary for Mrs. Brosius to bring suit, in the first place, against the borough. If the injury she sustained resulted from Mr. Arthurs’ neglect of duty, she had a right to elect as to which she would proceed against.

By the affirmance of defendant’s sixth point, the jury were precluded from basing a verdict on any contract or agreement of defendant to indemnify the borough, of which there was some evidence. Whether that instruction was right or wrong, we need not inquire. We must assume that it was obeyed, and hence the verdict cannot be based on that evidence.

The subjects of complaint, in the first twenty-two specifications, are the rulings of court relating to the several questions of evidence referred to therein. It is unnecessary to consider them separately. We are not prepared to say there is any error in either of them.

The twenty-third to twenty-fifth specifications allege error in affirming plaintiffs’ points therein recited. Neither of these is sustained; nor is the twenty-sixth specification sustained. It charges error in refusing to affirm defendant’s fifth point recited therein. For obvious reasons that point was rightly refused : 2 Dillon on Mun. Corp. § 1025.

The twenty-seventh and last specification, complaining of the charge of the court, in that the jury were not instructed “ upon the question to be decided and the issue being tried,” is not sustained. In so far as instructions were requested, by either party, they were given by the court. The defendant’s six prayers for instructions were answered by refusing the fifth and affirming all the others. The plaintiff’s evidence was quite sufficient to warrant the jury in finding as they did, even under the defendant’s own view of the law as embodied in his five affirmed points.

There appears to be no error in the record that requires a reversal of the judgment.

Judgment affirmed.