DocketNumber: Appeal, No. 147
Citation Numbers: 156 Pa. 246
Judges: Dean, Green, Mitchell, Sett, Ster, Thompson
Filed Date: 7/19/1893
Status: Precedential
Modified Date: 2/17/2022
Opinion by
The first assignment of error we are obliged to sustain. The general effect of Lytle’s testimony was that Warfel said he had told the chief of police to notify Mrs. Long about her pavement in the fall of 1889, and yet it is conceded that Warfel was' not elected burgesfe of defendant until 1890. Lytle did not attempt to explain this discrepancy, and the learned judge should either have struck out the testimony as requested, or at least have called the jury’s attention to it, and instructed them distinctly that no notice or knowledge imputable to Warfel before he became burgess could in any way bind the borough. Instead of so doing however, he said, in refusing the motion to strike out, that such notice or knowledge in the fall of 1889 might “ bear upon the question whether or not as chief burgess he knew,” etc. This is contrary to the settled law. “ It is only during the agency that the agent represents and stands'in the shoes of the principal. Notice to him is then notice to his principal. Notice to him twenty-four hours before the relation commenced is no more notice than twenty-four hours after it ceased would be. Knowledge" can be no better than direct actual notice.” Sharswood, J., in Houseman v. Girard Ass’n, 81 Pa. 256. In referring to Lytle’s testimony, the learned judge in his charge did not instruct the jury on this point, and hence they maj'- well have supposed that if Warfel knew of the defect in 1889 his knowledge would continue and bind the borough after he became burgess.
But the most important error in the case is embodied in the fifth assignment. The learned judge calling the jury’s attention to the testimony that a pavement of hemlock boards such as this was, would not' last ordinarily over four to six years,.
No case has been brought to our attention which holds any stricter rule than this. In Rapho Township v. Moore, 68 Pa. 404, it was held that when a bridge is old and has stood as long as the timbers usually last, it is negligence to omit proper precaution to ascertain its true condition. But there the duty to maintain the bridge was primarily and absolutely on the township, and the same element runs through all the other cases cited by appellee.
Judgment reversed, and venire de novo awarded.
Murray v. Michalak , 58 N.J. 220 ( 1971 )
Maric v. Pittsburgh , 328 Pa. 253 ( 1937 )
Mundy Paving Con. Co. v. Del. Co. , 299 Pa. 225 ( 1930 )
Good v. Philadelphia , 335 Pa. 13 ( 1939 )
Malone Et Ux. v. Union Paving Co. , 306 Pa. 111 ( 1931 )
Philadelphia v. Merchant Evans Co. , 296 Pa. 126 ( 1929 )
Farrelly v. Pittsburgh , 340 Pa. 516 ( 1940 )
Siger v. Pittsburgh , 156 Pa. Super. 51 ( 1944 )
Clark v. Pittsburgh , 145 Pa. Super. 565 ( 1941 )
Askin Et Ux. v. Pittsburgh , 159 Pa. Super. 205 ( 1946 )
German v. McKeesport City (Et Al.) , 137 Pa. Super. 41 ( 1939 )