254 Pa. 303 | Pa. | 1916
Opinion by
Clara Lockwood sued the City of Bradford to recover damages for personal injuries suffered through a fall on a defective sidewalk; she secured a verdict, which was followed by judgment in her favor; the city paid the amount of the award, and brought this action against the present defendants, alleging they owned the property in front of which the accident happened, and had negligently permitted the sidewalk to get out of repair ; a nonsuit was entered, which the court below refused to remove, and the plaintiff has appealed.
John Barry devised the premises in question to his wife, Ellen Barry, for life, and directed that, upon her death, it be divided among his children; the testator’s executors, his widow and his children are all named as defendants in the present action. The City of Bradford served due and proper notice on Ellen Barry, and all but one of the other defendants, to come in and defend Mrs. Lockwood’s prior suit. At the trial of the present case, the city introduced an ordinance passed in 1890 providing, inter alia, that sidewalks should be con
In a suit of this character, by a city against a property owner, it is necessary to show not only the prior recovery against the former, and payment by it to the injured person of the damages there determined, but also circumstances from which it can be found that, before the date of the accident, the defendant had either actual or constructive notice of the defect or fault which caused the injury. As recently pointed out (Philadelphia v. Bergdoll, 252 Pa. 545, 548), where the owner has had notice to come in and an opportunity to defend the prior suit against the municipality, a judgment therein concludes him on the facts relating to the existence of the defect in the sidewalk, the extent of the damages suffered by the injured person, and the latter’s due care at the time of the accident (see also Brookville Boro. v Arthurs, 130 Pa. 501, 514-5); but, in the subsequent suit to recover over against such owner, this does not relieve the municipality from the burden of showing the defendant had due notice of the defect in question. Where both the owner and the municipality have been guilty of negligence, and, under the facts in the case, a person injured thereby might recover against either, the former is
Here, as already suggested, there was no proof that any of the defendants had either actual or constructive notice of the defect which caused the injury, and the city did not attempt to show service of a notice to repair, as required by its ordinance. In Meanor v. Goldsmith, 216 Pa. 489, 493, we ruled that an ordinance such as the one now before us is in the nature of a police regulation, to be enforced against the owner of a property affected ; further, on the facts there involved, the title to the property being in a life tenant and remaindermen, we held that the former and not the latter was liable; see also York City v. Beitzel, 41 Pa. Superior Ct. 194, 200. The present ordinance not only requires that owners be notified to repair defective sidewalks, but it provides how and with what materials these repairs shall be made; which, considering the facts in connection with their original construction, indicates a desire on the part of the plaintiff city that its sidewalks shall not be indiscriminately patched, but repaired only on notice, possibly so that it might maintain a certain control over the execution of such work. This being the case, as between the present plaintiff and defendants, in the absence of the notice required by the terms of its own ordinance, the municipality certainly is not in a position to complain of lack of care, particularly where, as here, no evidence was produced to show either actual or constructive notice of the defect which caused the injury.
The several assignments are overruled, and the appeal is dismissed.