City of Chester v. First National Bank

9 Pa. Super. 517 | Pa. Super. Ct. | 1899

Opintoh by

Smith, J.,

While walking along the sidewalk, fronting the defendant’s vacant lot in the city of Chester, a woman was injured by reason of the walk being out of repair. For this injury she recovered damages in an action against the city. The present action was then brought by the city against the lot owner to recoArer the amount thus paid, and a verdict was directed for the plaintiff, subject to a reserved question raised by the defendant’s first point. The question was as follows: “ There is no liability in this case from the defendant to the plaintiff, except only such liability as may appear from a duty resting upon the defendant to repair the pavement by force of a requirement resting upon statute or municipal ordinance; and none such having been shown in this case, the verdict should be for the defendant.” The court subsequently entered judgment for the plaintiff on the reserved question, and this is assigned for error. By the reservation the case was made to turn on the question whether a duty to repair rested on the defendant.

In Grier v. Sampson, 27 Pa. 183, it was said by Woodward, J.: “That the owner of real estate lying along a public sLreet or highway, is bound to keep it in such repair as to make it safe to passersby, and is liable in damages for injury resulting from his neglect to perform this duty, is a proposition unquestioned by the thirteen errors assigned upon this record.” This proposition was there stated with reference to the facts of that case. If too broad to be uniformly applicable, it is at least beyond question that, whenever the abutting owner is by law bound to keep the highway in repair, he is liable for an injury caused by his negligence; an d that the municipality, if subjected to action by reason of such negligence, has recourse over to him: Brookville Borough v. Arthurs, 152 Pa. 334. Property owners are bound by the ordinances enacted for the benefit and welfare of the inhabitants of the municipality and they must accept the burdens with the benefits. The general power of a municipality to require the owner of abutting property to pave and if necessary repair a sidewalk at his own expense has often been decided: Smith v. Borough, 120 Pa. 357 ; Borough v. Home for Aged, 131 Pa. 109; Brookville Borough v. Arthurs, supra. This power is conceded in the present case. The position of the appellant is that this duty has not been lawfully imposed and therefore no neglect of duty is shown and no liability established.

By act of April 6,1850, the borough of Chester was incorporated, and under the act of February 14, 1866, this borough was organized as the citjr of Chester. The municipality afterward became a city of the third class, having'duly accepted the act of May 23, 1889. Section 25 of the act of April 6, 1850, provides: “If the owner .... of any ground fronting on a footway wholly or partially paved and curbed shall suffer the said curbing and paving to be out of repair and shall neglect for the space of twenty days after he shall have been required .... to put the same in good repair, then it shall be lawful for the proper officers to recurb and repair such footway,” and recover the expense from the owner. By act of April 3,1867, section 29, it is provided: “ That in case of refusal or neglect by any owners of property in the city of Chester to repair the pavement, curbstone or sidewalk in front of their respective properties for the space of three days after notice,” the repairs may be made by the city and the expense collected from the owners. These statutes are still in force as part of the charter of the city of Chester, and show, by implication at least, a duty imposed upon the owners of property fronting on footways or sidewalks, to construct, maintain and repair such walks. It is an established principle of construction that “ What is implied in a statute, pleading, contract, or will, is as much a part of it as what is expressed: ” U. S. v. Babbit, 66 U. S. 55. It is also a well established principle that a penalty for doing an act implies a prohibition of the act, though the statute contains no words of prohibition: Mitchell v. Smith, 1 Binney, 110. In like manner a penalty for the nonperformance of an act implies the duty of performance, though this be not directly commanded, since otherwise there is no ground for the penalty. Applying these principles to the foregoing statutes it is quite clear that the duty to repair sidewalks, and the liability for its neglect, are lawfully charged upon the owners of abutting property.

This construction of the sections quoted is not qualified or affected by the additional provisions contained therein for enforcing liability. They relate to the same subject and were properly included in the same sections, but the duty to repair does not depend on measures for its enforcement. The remedy by lien and for collecting the expense of the repairs are separate and independent of the liability and duty imposed. These may or may not be pursued, as the circumstances may require, and are resorted to only when it is necessary to secure or to collect the expense from the lot owner. As this expense is not involved in the present case it is immaterial whether the statutory remedy for its collection has been duly observed or not. The duty to repair existing, failure to perform it is a breach for which an action may be maintained. That municipalities may recover over from those who are primarily liable for injuries caused by their neglect to maintain sidewalks has been decided so often by the Supreme Court that it is familiar law.

The judgment is affirmed.