Cunius v. Edwardsville Borough

Opinion by

Trexler, J.,

In Downing v. Coatesville Borough, 214 Pa. 291, the plaintiff was injured by falling into a hole in a sidewalk in the Borough of Coatesville. There was evidence that the portion of the street in which the hole was located had been thrown open to public use by a former owner of an adjoining property, but there was no.evidence that the strip in question had been accepted as a public street by the borough. It was held in that case that although the throwing open of a lot and making it a part of a street may amount to a dedication to public use as against the owner, nevertheless, such action by the owner cannot of itself make the land part of the street so as to bind the municipality. Some act of acceptance on the part of the municipality must be shown before it can be held liable for failure to keep in repair, etc.

In the case at bar, the portion of the pavement in which the cellar entrance into which the plaintiff fell was located, had formerly been covered by the building on the premises. Afterwards the front of the building wás torn, away and the building set back and the intervening space was made a part of the sidewalk by the owner, but his tenant continued to occupy it for the purpose of displaying goods, and the owner never, relinquished his ownership or control. That the public used the intervening space as a means of passage is not a determining factor. Mere silence on the part of the borough does not imply acceptance: Steel v. Huntingdon Boro., 191 Pa. 627. It did not appear in the case that the borough by an ordinance or by any other act assumed control over the portion in question. It was incumbent upon the plaintiff to produce evidence showing that the borough accepted the part of the sidewalk where the injury occurred or in some manner recognized it, but they failed to do this and the court was right in entering judgment for defendant: Gowen v. Philadelphia Exchange Co., 5 W. & S. 141; In re Alley in Pittsburgh, 104 Pa. 622; Com. v. Moorehead, 118 Pa. 344; Weiss v. So. Bethlehem Boro., 136 Pa. 294; Waters v. Philadelphia, 208 Pa. 189; Scott and Union Township Road, 39 Pa. Superior Ct. 361.

We need not consider the question, of contributory negligence.

The assignments of error are overruled and the judgment is affirmed.