DocketNumber: Appeal, No. 157
Judges: Brown, Dean, Fell, Mestrezat, Mitchell, Potter, Thompson
Filed Date: 12/31/1904
Status: Precedential
Modified Date: 10/19/2024
Opinion by
This was an action by the appellant to recover, from the appellees the amount of a verdict that it was by suit compelled to pay to a person who had been injured by a fall caused by a ridge of ice formed in front of and upon the pavement of the properties owned by the appellees and occupied by tenants. The liability of the appellant in that action sprang from the actual notice to it, of the dangerous condition of the ice upon the pavement and after such notice its neglect to remove it. The proof there was that its street commissioner had express notice of the ridge of ice that caused the accident and its dangerous character. Having such notice and having failed to perform its duty and having been mulcted in damages for such failure of duty, appellant now seeks to recover the amount of such damages from appellees, who had no notice or knowledge of the condition of the ice on the pavement and whose properties were in the occupancy of tenants.
The principle underlying the right to be reimbursed for damages paid by a municipality in cases of accident is that the owner or occupier of the property, as the case may be, is primarily liable to the person injured. The right of subrogation springs from that liability. The primary liability in that case was upon the appellant. It assumed the duty of removing the ice. By its ordinance it required owners, tenants or occupiers of properties to remove the ice in front of the same before ten o’clock of the next day after its accumulation and failing to do -so to be liable to a fine, and in case the owner or
In Smith’s Public Corporations, volume 2, section 1305, it is said:
“ But when a charter imposes upon lot owners the duty of keeping the sidewalk in repair, and free from snow or ice or other obstructions, and also provides that tho superintendent of streets should repair any sidewalk where the owner of the property neglected to repair the same for a fixed number of days after the service upon him of a written notice so to do, and that the superintendent should collect the expense of such repair from the owner of the property, it only imposes upon the owner a statutory liability for the expense of such repairs. It does not directly and specifically make him liable for any damages in case of personal injuries to persons from a failure to keep such sidewalks in repair and the municipality, though it may in an action be held liable to the person injured and pay the same, cannot maintain the action against the lot owner for indemnity.” He there cites numerous authorities to sustain the above.
The failure of the appellant to remove the ice ridge in question with notice of its dangerous condition or to give notice to the tenants to remove it promptly, or in case of their failure, to do so at their expense, negatives an equal liability basis upon which to build a right in equity for subrogation, against the appellees, the owners of the property, not in occupancy, and without the slightest knowledge or information in regard to the condition of the pavement, but in any contingency the right to reimbursement by appellant could only spring from a liability of the appellees, which Dean, who recovered a verdict against the appellant, might have enforced against them. They were the owners of the properties and their tenants were and had been for many years the actual occupiers of them. The ac
In Lohr v. Philipsburg Borough, 156 Pa. 246, Mr. Justice Mitchell said:
“ In the recent case of Burns v. Bradford City, 137 Pa. 361, our Brother McCollum said : ‘ A municipal corporation is not an insurer against all defects in its highways, but it is answerable for negligence in the performance of its duties in the construction and care of them. For a defect arising in them without its fault or neglect, it is. not liable, unless it has express notice, or the defect be so notorious as to be evident to all passers.’ ” It was accordingly held in that case that although “ It is a fact well known to the inhabitants of all our municipalities that sidewalks are liable in the winter to be thrown out of level by the action of the frost ” yet the plaintiff .who was injured, very much in the same manner as the present plaintiff was, by the stringers of a plank walk being raised higher on one side than the other, could not recover without proof that the defect was observable by all passers. So here, the proper instruction to the jury should be that the borough was bound to keep a reasonable supervision over the condition of its sidewalks, but it was not liable for negligence unless it had actual notice or knowledge of the defect complained of, or it was so plain to observation and had existed so long a time that officers exercising a reasonable supervision ought to have observed it.
The primary liability on the part of the owner out of occupancy may arise where the injury is the result of negligence springing from a failure to repair a pavement, but where no such condition exists and there is no failure of duty in regard
There is no evidence that any such flow ever previously made any mischief. Such being the case there was no such failure of duty on the part of appellees as to be the foundation of any liability.
The case of Brown v. White, 202 Pa. 297, was a case in which the construction was a nuisance per se and the owner’s liability was placed distinctly upon that ground and Mr. Justice Mestrezat, quoting from the case of Knauss v. Brua, 107 Pa. 85, says:
“ But the converse of this proposition is also true; if the premises are so constructed, or in such a condition, that the continuance of their use by the tenant must result in a nui
The learned trial judge was not guilty of error in giving binding instructions for the appellees and this judgment is affirmed.