DocketNumber: Appeal, No. 144
Citation Numbers: 230 Pa. 251, 79 A. 552, 1911 Pa. LEXIS 598
Judges: Brown, Elkin, Mestkezat, Mestrezat, Mosch, Potter, Stewart, Zisker
Filed Date: 1/3/1911
Status: Precedential
Modified Date: 10/19/2024
OpiNion by
This is an action of trespass brought by a pedestrian to recover damages for injuries she sustained in falling into an opening in the pavement on Wylie avenue, Pitts-burg. The plaintiff testified that she was walking on the pavement in front of defendant’s premises about eight o’clock on the evening of November 3, 1906, and, meeting some friends, stopped to talk to them. The street was crowded and in stepping aside to avoid the crowd she fell into a hole in front of defendant’s building And was severely injured. The hole led into the cellar and was covered by an iron grating resting on a wooden frame. It extended about fourteen inches from the building and was twenty-eight inches long and twenty-six inches wide. The plaintiff alleges that the framework had become rotten and insufficient to properly support the grating, and that its defective condition was the result of the defendant’s negligence.
The defendant denies that the plaintiff’s injuries resulted from his negligence because: (a) the grating was so close to the building and away from the line of travel that he could not be held to have foreseen the accident, and the length of time in which the sidewalk had been used removed any doubt as to its reasonable safety; (b) the premises were in possession of a tenant whose duty it was to repair; and (c) the evidence was insufficient to impute notice of the defect to the defendant.
We do not think any of these reasons sufficient to defeat the action. The proximity of the hole to the building did not relieve the defendant from using reasonable care to keep the grating and its wooden support in proper and safe condition. The public had the right to use the whole of the unoccupied portion of the pavement — from the building line to the curbstone — and the primary duty of keeping it in repair rested upon the owner of the abutting premises. The grating was a part of the sidewalk, and it was the duty of the property owner to exercise the same care in keeping it in safe condition as any other part of the pavement. It has been ruled by this court that a property owner maintaining a coal hole .or other opening in a sidewalk is bound to know that persons will pass and repass and step upon the cover without apprehending danger, and he is, therefore, held to care and diligence in keeping it secure. This applies to the whole sidewalk which is open and in use by the public.
We are not impressed with the argument that the
That the premises at the time of the accident were in possession of a tenant does not under the circumstances relieve the defendant from his duty to inspect and repair the pavement. The primary duty of keeping a sidewalk in repair rests upon the owner of the abutting premises. The municipality is liable to a party injured by reason of its defective condition but the owner is ultimately responsible. If the sidewalk becomes defective while in the occupancy and control of a tenant resulting in injury to a third person, the tenant is liable, and if the defect existed at the time of the demise, the landlord is responsible to the injured party. This is ruled in many cases: Knauss v. Brua, 107 Pa. 85; Fow v. Roberts, 108 Pa. 489; Wunder v. McLean, 134 Pa. 334; Reading City v. Reiner, 167 Pa. 41; Brown v. White, 202 Pa. 297; Kirchner v. Smith, 207 Pa. 431. The landlord cannot relieve himself from liability by placing the tenant in possession of the property. It is his duty to remove the nuisance or defect before he delivers the premises to the tenant, and if injury results on account of his failure to perform this duty he is not relieved from liability by reason of the tenant’s possession. To relieve a landlord from liability under such circumstances would be, as said by Bar
While the defendant had been the owner of the property for twenty years or more, it seems that during all that time it had been in possession of a tenant. As noted above, the defendant let the premises until April 1, 1905, and during the preceding January he relet to the same tenant for a term of .three years from April 1, 1905. The accident occurred in November, 1906. It was claimed by the plaintiff on the trial and she submitted testimony to show that the defect in the sidewalk existed at the time the premises were let to the tenant who was in possession when the plaintiff fell in the hole and was injured. It is contended by the defendant that by reason of the tenancy he was not in possession of the premises and, therefore, could not have repaired the grating. But this position is not tenable. The ground of the defendant’s liability for the nuisance is that it existed at a time when he had the opportunity or power to abate or remove it and failed to do so. When the lease was executed and the term was created, the finding of the jury is that the defect existed. It was then his duty before renewing the lease to have abated the nuisance. It was within his power to do so and his failure to exercise that power imposes liability. “Nor do I perceive how the liability of the landlord in such cases,” says Magie, J., in Ingwersen v. Rankin, 47 N. J. L. 18 (54 Am. Rep. 109), “will be diminished by the fact that he renewed the tenant’s lease without retaking actual possession. Such a conclusion would be opposed to the principles creating and governing his liability. If a nuisance is created during a term already existing, no liability falls on the landlord pending that term, for the reason that he has no legal
We do not agree with the contention that the evidence was not sufficient to warrant submitting the question of actual and constructive notice to the defendant of the defect in the sidewalk. This is not an action against the municipality but against the owner of the premises whose duty it was primarily to keep the premises in repair: Duncan v. Phila., 173 Pa. 550; Mintzer v. Hogg, 192 Pa. 137. As said by Mr. Justice Clark in Dickson v. Hollister, 123 Pa. 421, 429: “It was his duty to exercise reasonable care and diligence, not only in making, but in keeping it (the sidewalk) safe and secure. He was bound to know that persons would pass and repass on this pavement not only in day time, but in the night time also. ... It is quite certain that this cover was not secure, or it would not have turned, and the jury has found that its insecure condition was owing to the defendants’ want of due diligence and care concerning it. It is absurd to say that in order to charge the owner of the premises with notice, 'the defect must be so notorious as to be evident to all pedestrians passing in the immediate neighborhood!’” The- primary duty, therefore, rested
Whether or not the defendant had actual knowledge was for the jury under the testimony submitted. He visited the premises at least once every month for twenty years to collect the rents. He says he “couldn’t see anything wrong with it,” implying that he did see the grating at least on some of the visits. O’Toole, a witness called by the defendant, was employed to lay a new pavement on the sidewalk but had nothing to do with the grating or its support, and hence his testimony could not aid the jury in determining the condition of the iron grating and its wooden support. If the support was rotten and worthless at the time of the accident, and for several years prior thereto, as testified by the witness, the defendant saw it and permitted it to remain in the insecure condition, or was entirely incapable of making a proper inspection. In either case he, as owner of the premises, failed to perform the duty of a reasonably prudent man, and must accept the penalty which the law imposes for his negligence.
The question of the contributory negligence of the plaintiff is not before us. When she stepped aside to •avoid the crowd she was still on the pavement, and that act did not convict her of negligence. Under the evidence, she was on the sidewalk and where she had the right to be. She testifies that she was exercising care when she stepped toward the building. “Q. Were you using the care that you usually use when you walk on the sidewalk? A.' I certainly was, I tried to be as careful as possible.” The cover on the hole was apparently substantial and safe, and the plaintiff was not required to make a critical examination before stepping on it. In the absence of knowledge to the contrary, she had the right to assume that it would support her weight. The request for binding instructions, therefore, could not have been granted
The ninth assignment violates rule 31, and hence will not be considered: Readdy v. Shamokin, 137 Pa. 92; Raymond v. Schoonover, 181 Pa. 352. The sixth assignment must be dismissed as there was evidence from which the jury coiild determine the plaintiff’s expenses incurred by reason of her injuries, and there is nothing to show that they were unreasonable. The matters of practice complained of in assignments seven and eight are in substantial accord with the practice approved in Fleming v. Dixon, 194 Pa. 67, and hence those assignments are not sustained.
The judgment is affirmed.
Harris (Et Ux.) v. Lewistown Tr. Co. , 326 Pa. 145 ( 1936 )
Hanley Et Ux. v. Ryan Et Ux. , 1926 Pa. Super. LEXIS 239 ( 1925 )
Fisher Et Ux. v. City of Phila. , 112 Pa. Super. 226 ( 1933 )
Schultz v. Pivar , 370 Pa. 271 ( 1952 )
Briggs v. City of Philadelphia , 112 Pa. Super. 50 ( 1933 )
Beebe v. Philadelphia , 312 Pa. 214 ( 1933 )
Vendig v. Union League of Phila. , 291 Pa. 536 ( 1927 )
Bouy v. Fidelity-Philadelphia Trust Co. , 338 Pa. 5 ( 1940 )
Moscon Et Ux. v. Philadelphia , 147 Pa. Super. 251 ( 1941 )
Wright Et Ux. v. Scranton , 128 Pa. Super. 185 ( 1937 )
Clifford v. City of Philadelphia , 104 Pa. Super. 338 ( 1931 )