Watson v. City of Philadelphia ex rel. Adams

Mr. Justice Paxson

delivered the opinion of the court, March 1st 1880.

This was a scire facias upon a city claim for paving a sidewalk. There was no allegation that the work was not well done; on the contrary, one of the defendants testified that it was done properly, and that he wanted to pay for it. Payment, however, was resisted on behalf of one of the joint-owners upon two grounds : 1. That the pavement was not laid of the full width required by the ordinance, and 2. That there was no proof the owners had been previously notified to pave by the city authorities.

It was not disputed that under the ordinances of councils this sidewalk should have been paved to the width of eight feet. The evidence as to the width of the pavement varied somewhat. Mr. Hancock, the surveyor and regulator of the district, testified as follows: “ This was a very good job ; both edges of the pavement had brick on edge. I measured north line of pavement; it is more on curb. On the upper end it measured eight feet two inches, making necessary allowance; it is undoubtedly an eight-feet pavement there. The lower end now averages seven feet eight inches, and the other end eight feet two inches. If curb be added, it is eight feet seven inches.” Under this and other evidence of a similar character, though differing slightly as to width, the learned court submitted to the jury the question whether there had been a substantial compliance with the ordinance, saying, in answer to the defendants’ third point: “I can only repeat what I have said in my charge, that there must be a substantial compliance with the ordinance as to the width of the pavement, or the plaintiff cannot recover. If there has been an immaterial variance, and the city has accepted the work, the plaintiff can recover.” We see no error in this instruction. It was for the jury to say whether the plaintiff had complied with the ordinance, and under all the circumstances that question was fairly submitted to them. This lot appears to have been angular in shape, and it is quite possible some of the slight inequalities in the width of the pavement may have been due to this fact. There was evidently an intention to conform to the ordinance in good faith, and the jury have found a substantial compliance. It was the duty of the owners to have paved the sidewalk. It was their neglect of this duty that compelled the city authorities to procure it to be done by contract. The plaintiff having contracted with the city to do the work, the city having accepted the work as satisfactory, and the jury having found there was a substantial compliance with the ordinance, the defendants have no cause of complaint. It is not alleged they are charged with more pavement than was laid.

The question of notice is unimportant. The claim contains an averment that the requisite notice to pave was given. The Act of Assembly makes such claims prima facie evidence of all matters contained therein. See Act of 11th March 1846, Pamph. L. 114, and Thomas v. Northern Liberties, 1 Harris 117 ; City v. Burgin, 14 Wright 539; Philadelphia, to use, v. Brooke, 31 P. F. Smith 23. The defendant’s evidence upon this point did not overcome the plaintiff’s prima facie case. The executors could not know whether notice had been served upon their testator. The other defendant does not appear to be contesting. At any rate, he said that as to him the notice would probably have been served upon his agent, Mr. Maügle. The latter testified that he had never to his knowledge received notice to pave this lot, but acknowledged that a notice, of the character of which he was unable to speak, had been left some time before the work was done. There was nothing in the evidence of the defendants to call for anything in rebuttal on the part of the plaintiff. This renders it unnecessary to consider the third assignment of error. The admission of the evidence therein referred to, even if erroneous, as to which no opinion is exDressed. did the defendants no harm.

Judgment affirmed.