52 Pa. Super. 581 | Pa. Super. Ct. | 1913
Opinion by
This action was brought to recover damages for injuries caused to Catharine Ankenbrand by falling into a hole in a footway in Fairmount Park, a public park within the limits of the city of Philadelphia. Interpreting the verdict in the light of the charge of the court, it implies a finding that this defect in the sidewalk had existed for such a length of time as gave the proper officials constructive notice of it, and this finding was fully warranted by the evidence that it had existed since the summer of the preceding year. The verdict also implies a finding, which was warranted by the evidence, that the plaintiff was not guilty of negligence that contributed to the injury. Further, it was alleged in the statement of claim, and admitted on the argument here, that , the place where the defect existed and the accident occurred, was in a public highway. True, the place was inside the park. But it is to be noticed that, by sec. 8 of the Act of April 14, 1868, P. L. 1083, the jurisdiction of the park commissioners extends to the breadth of the footway next the park in all avenues or streets which bound on the park. A ruling that the city cannot be sued for injury to a pedestrian, caused by a defect in a highway within the park limits, would apply likewise to a similar injury occurring
The general rule in Pennsylvania is, that a municipal corporation having the power and subject to the duty to maintain the highways within it, is chargeable with the consequences of the presence of an actual and unlawful obstruction or negligent defect in that portion of a highway within its limits, which the general public is invited to travel, at least as soon as it can be said to have knowledge of the obstruction or defect. This, it was said in Mattimore v. Erie, 144 Pa. 14, must be conceded, and it is not denied here that, as to the generality of public streets, lanes, and alleys, the city of Philadelphia is so chargeable. The fact that a highway in a municipality is within or passes through an uninclosed public park, does not change the rule. Thus, in Weber v. Harrisburg, 216 Pa. 117, a judgment in favor of the plaintiff was sustained under the following circumstances. The plaintiff was injured by falling over an iron cable stretched across a path along the river front in the city of Harrisburg. The cable was partly buried in the path. The evidence showed that the locality in question had long been used as a public park, under the control of the city, and also as a public landing place. The cable in question had been stretched across the path by boatmen to secure boats in the river. Mr. Justice Potter, after pointing out that, under the finding of the jury, the city had assumed control and management of the place where the accident occurred, said: “Being then in control, it was manifestly the duty of the city to see that the pathway was kept
By the Act of March 26, 1867, P. L. 547, it was provided that the incumbents for the time being of certain city offices designated in the act, namely, the mayor, the presidents of the select and common councils, the chief engineer and surveyor of the city, and the chief engineer of the water works, and ten citizens of Philadelphia to be appointed by the court of common pleas of Philadelphia, shall constitute the commissioners of Fairmount Park. Amongst the provisions of that and other local acts relating to their powers and duties, the following may be appropriately mentioned. They shall adopt a plan for the improvement and maintenance of the park; they shall have the care and management of the park and the power to maintain it in good order and repair; all plans and expenditures for improvement and maintenance of the same shall be under their supervision and control; they may vacate any street or road within the boundaries of the park (excepting Girard avenue), and open for public use such other roads, avenues, and streets therein as they may deem necessary; their juris
It must be conceded that, by virtue of the statutory provisions to which we have referred, the commissioners have very broad powers over that portion of the city embraced within the park, and even over the adjoining footwalks, and that the exercise of many of these powers is not subject to direct review or control by the mayor and
We have gone sufficiently into detail, perhaps more than was necessary, in reviewing the legislation. In order to bring prominently into view its material and controlling features, we recapitulate': The title to and ownership of the park and all that belongs to it, whether acquired by purchase, donation, or the exercise of eminent domain, are vested in the city. Except for donations (and these were made to the city) the cost of its laying out, improve
It will be seen from the foregoing review, that the city’s relation to the park and the park commissioners is quite different from its relation to the school district (a quasi municipal corporation) and the board of public education, and the differences are of such a nature as to take the case out of the operation of the principles that were held to control in Board of Public Education v. Ransley, 209 Pa. 51, and Rosenblit v. Phila., 28 Pa. Superior Ct. 587. Further, that there are material and substantial differences was expressly recognized by this court in the last-cited case, as the following excerpt from the opinion of our brother Porter will show: “While the undertaking of a city to maintain a public park is, generally speaking for a public purpose and the public may have a share in the enjoyment of its advantages, the municipality may
It may be said that the city, as such, has no voice in the selection of the commissioners. This is true only in part, for some of the commissioners become such by virtue of their being city officers, and the others are appointed by judges who were elected by the people of Philadelphia. But even if it were wholly true, it would not' be a conclusive reason for holding the city exempt from liability for their acts. It is true of a city, as of every corporation, that it can perform its corporate functions and duties only through natural persons. But, as the city derives its powers from the legislature, it is for that body to determine how the officers and agents of the city shall be selected. It might, in the present instance, have designated the city councils to exercise the powers and perform the duties in question, or a board to be appointed by them or to be elected by the people of the city, and, in either event, we suppose it would not be questioned that the officers so elected were the representatives and agents of the city. But we cannot see that the commissioners of Fairmount Park are any less the representatives and agents of the city in doing that which it is made the duty of the city to do, because they are not appointed in either of the ways above suggested. This view is well supported by the opinion of Mr. Justice Hunt in
The judgment is affirmed.