DocketNumber: Appeal, 204
Judges: Keller, Baldrige, Hirt, Kenworthey, Reno, James
Filed Date: 4/28/1944
Status: Precedential
Modified Date: 10/19/2024
Argued April 28, 1944. The city of Pittsburgh appeals from the refusal of its motion for judgment n.o.v.
Plaintiff resided and was the owner of a grocery store at 2129 Webster Avenue in the city of Pittsburgh, *Page 53 from which he also conducted a huckstering business. On May 31, 1939, he parked his truck in front of his store, picked up a fifty-pound box of bananas and without looking, jumped from the truck about 3 feet to the sidewalk. He landed on the manhole cover of a sewer which gave way and he suffered personal injuries for which the suit was brought. The cover and drop to the sewer had been constructed by the city during 1937.
Plaintiff's counsel started to try the case on the theory that the city's negligence consisted of improper construction. There was evidence that the cover was made of concrete and steel, and the flange supporting the cover was made of concrete without any metal rim to support the cover or to prevent it from chipping and wearing away. Finding that he was unable to produce an expert witness he called plaintiff's married daughter to prove constructive notice to the city of the lid's wornout and defective condition. She testified that for a period of several months prior to the accident she had noticed on a number of occasions that as people walked along the sidewalk and stepped on the lid, it tilted. She never advised her father of the defective condition because she did not think it was important and the plaintiff said he neither knew of nor noticed it. Although there was sufficient evidence from which the jury could infer the cover was worn and defective, it must be conceded that when it was in place there was nothing to obviously indicate the danger; otherwise appellee's failure to look before he jumped would convict him of contributory negligence as a matter of law. Compare Cooney v. City of Pittsburgh,
There may be some question whether a municipality has a duty to construct and maintain a manhole cover secure enough to withstand the weight of a man holding an additional fifty pounds who jumps upon it from *Page 54 a height of 3 feet but we need not decide that question as we think the case is ruled on broader grounds.
Although a municipality has a primary duty to maintain in good condition its sewer covers on sidewalks or cartways (Good v.Philadelphia,
Ordinarily the question of constructive notice is for the jury, but where the defect is not observable to the *Page 55
plaintiff and can only be discovered by a close examination it becomes a matter of law for the court: German v. McKeesport,
Plaintiff further argues that there was evidence to show actual notice (Burd v. Philadelphia, supra) that on several occasions, shortly prior to the happening of the accident, the city supervisor had removed the cover of the manhole for the purpose of cleaning the sewer and that the condition of the cover was such that he should have noticed it when he removed it. This argument might have some merit if the facts were sufficient to support it, but the record is absolutely barren of evidence from which the jury would infer that the supervisor had notice. All he said was that his records showed that the sewer drop had been flushed on June 16, 1938, about a year before the accident. He had no recollection of a personal inspection and his only other visit to the property had been to investigate the flooding of the cellar which did not require the removal of the lid. *Page 56
A discussion of the cases from sister states, cited by appellee, is unnecessary; some are easily distinguishable on the facts and others are in direct conflict with what our courts have laid down as the rule fixing liability under comparable facts.
Judgment is reversed and entered for defendant.
Workingman's Savings Bank & Trust Co. v. Pittsburgh ( 1925 )
Roth v. Verona Borough ( 1934 )
Malone Et Ux. v. Union Paving Co. ( 1931 )
German v. McKeesport City (Et Al.) ( 1939 )
Cooney v. City of Pgh. (Et Al.) ( 1942 )
Murdaugh v. Oxford Borough ( 1906 )
Lohr v. Philipsburg Borough ( 1893 )
Green v. Philadelphia ( 1916 )
Vanderslice v. City of Philadelphia ( 1883 )
Truschine v. Fayette Mfg. Co. ( 1916 )