134 A. 400 | Pa. | 1926
Plaintiff recovered a verdict and judgment for injuries sustained by falling on an alleged defective sidewalk; defendant has appealed.
The judgment cannot be sustained. Walnut Street, in the defendant city, extends, inter alia, easterly from *159 Front Street to River Avenue, a short block, on the south side of which is the public library building, erected in 1912. The entire width of the south sidewalk there is eleven feet, but standing therein adjoining the curb are six shade trees, surrounded by grass plots approximately four feet wide and ten feet long. It is a granolithic or cement sidewalk, the eleven-foot width of which is reduced to seven feet at the grass plots; these plots, common throughout the city, were placed there by virtue of an ordinance, to afford the trees moisture and air. The walk was two inches above the curb and the plots were not intended to be higher than the one or lower than the other; that is, never above nor more than two inches below the surface of the cement walk. An arc light of 2,000 candle power, under the old nomenclature, hung over the intersection of River Avenue and Walnut Street, which was about fifty feet from the second grass plot, and across the street from the latter was a beacon light at the door of the police office. About 8:30 o'clock on the evening of September 4, 1921, plaintiff, while walking west on the south sidewalk, accompanied by a lady friend, fell and was badly hurt as she stepped upon this second grass plot. Her contention, supported by sufficient evidence to take that question to the jury, is that she stepped into a depression five or six inches in depth, which she failed to see because of the darkness.
A fatal defect in plaintiff's case is the entire absence of any proof tending to show the existence of such depression at any time prior to the accident. There is some evidence that it was there afterwards, but none that it was there before. There was little if any grass in this plot and plaintiff's brother testified the surface of the depression looked hard when he saw it the next day. This might well be, as the soil had been there for years; moreover, the sudden appearance of a depression in a sidewalk or cartway from some underground cause, is not a very extraordinary occurrence in a city street and might leave the surface depressed but unbroken. The *160
primary duty to construct and maintain sidewalks, grass plots, etc., is upon the property owner (Emery v. Pittsburg,
The right of a municipality to use or permit property owners to use certain portions of a highway for purposes of adornment, like statuary, grass plots, shade trees, etc., is undoubted. See Penna. Mut. Life Ins. Co. v. Cuyler et al.,
The judgment is reversed and is here entered for the defendant non obstante veredicto.