170 A. 875 | Pa. Super. Ct. | 1933
Argued September 26, 1933. These four appeals grow out of one action and will be disposed of in one opinion.
Harry Fisher and Anna Fisher, his wife, (appellees in Nos. 75 and 73, respectively), brought an action of trespass in the municipal court against the City of Philadelphia to recover the damages sustained by them respectively in consequence of a fall by Mrs. *229 Fisher on February 13, 1928, caused by the defective condition of a sidewalk along Anderson Street, corner of East Chelten Avenue, Philadelphia; which defect had existed sufficiently long, it was claimed, to put the city upon constructive notice of its condition.
The city caused writs of scire facias to be issued, under the Act of April 10, 1929, P.L. 479, to bring in as additional defendants, who, it claimed, were liable over to it in case of a recovery against it, (1) William Toll, Francis X. Hartman and Helen Rossman (appellees in No. 72), who, it was averred, owned and controlled the property abutting on said defective sidewalk and were, as to the city, primarily responsible for the defect in the footway in front of it; and (2) Joseph Cassel — amended to Joseph Passel — (appellee in No. 74), who, it was averred, controlled, possessed and had the right of possession of said premises and was, as to the city, primarily responsible for the defect in the footway pavement in front thereof.
Toll, Hartman and Rossman filed an affidavit of defense to the scire facias, in which they did not deny the averment that they owned the property fronting on the defective sidewalk, but denied that they controlled the same, or were primarily responsible for the alleged defective footway, because they averred that on August 13, 1927 they leased the premises, known and numbered as 1201 E. Chelten Avenue, to Joseph Cassel for the term of three years beginning December 20, 1927; and that prior thereto, for at least two years before December 20, 1927, said Joseph Cassel had been in possession and control as tenant of said premises; and that under the lease of August 13, 1927, the said Joseph Cassel undertook to keep said premises in good order, condition and repair.
Passel (Cassel) filed no affidavit of defense.
(1) We will first consider the appeals which question the liability of the city to the plaintiffs, Harry and Anna Fisher. *230
The accident causing the injury occurred in the following manner, according to the plaintiff's witnesses. Mrs. Fisher, accompanied by her six year old son, at about 2 o'clock in the afternoon of a clear, bright day, was walking on the east side of Anderson Street northwardly from Chelten Avenue. They had just alighted from a trolley car and were on their way home from a shopping trip. She was carrying some packages. The boy was walking to her right. The sidewalk, which was a cement one six feet wide, did not extend the whole way to the curb, three feet of dirt plot being between the edge of the cement walk and the curb. The outer or western edge of the cement walk was cracked or broken in several places, making holes at the edge of the cement walk, the one here involved being about sixteen inches long, eighteen inches wide and three inches deep. A short distance north of this hole in the sidewalk the steps leading from a side door of the building to Anderson Street encroached on the sidewalk, taking up nearly half of the cement sidewalk at that point. As Mrs. Fisher and her son approached the steps, the son, in order to get past the steps walked in front and slightly to the left of his mother. She saw the hole in the pavement and was walking sufficiently away to the right or east to avoid it. As they got opposite the hole, the boy for some unknown cause stumbled and the mother instinctively stepped forward to catch him or keep him from being hurt, and her left foot went into the hole, causing the fall and its consequent injury. There was evidence on behalf of the plaintiff that the holes in the sidewalk had been there for about four months; the city's witnesses testified it was in the same condition that it was in that day for about two years, (72-a and 77-a).
We think, under the evidence, the questions of (1) the city's negligence and (2) the plaintiff's contributory negligence were for the jury, and that it would have been error for the court to rule upon them as *231
matter of law. Had the plaintiff, without any unforeseen occurrence, walked into the hole, while not looking where she was going, she could not recover. But that is not this case. She was keeping far enough to the right of the hole to pass it safely. There was no sidewalk at all on the other side of the street. The involuntary step taken by her to save her small child from falling should not convict her of contributory negligence as matter of law. See Dunfee v. Phila.,
(2) We then come to the appeals relating to the additional defendants brought in by scire facias under the Act of 1929.
For the purpose of proving the ownership by Hartman, Toll and Rossman of the premises abutting on the defective sidewalk, and the possession of the same by Passel, the city offered in evidence the writs of scire facias which had been issued on praecipe of the city, the original defendant, to bring them in as additional defendants to the action. The additional defendants *232 objected and the court refused the offer. This was error.
The Act of 1929, supra, made no provision for the filing of astatement of claim by an original defendant who claimed that some third party was liable over to him in case of a recovery against him and whom he desired brought in as an additional defendant. The Supreme Court in the case of Vinnacombe v. Phila.,
Any action which the City of Philadelphia, in case of a recovery against it in this suit, could bring against the additional defendants whom it claimed to be responsible over to it, would properly be by action of assumpsit; Phila. v. Reading Co.,
The affidavit of defense filed by Hartman, Toll and Rossman did not deny ownership of the premises in question. Its denial was limited to the averment as to being in control. Hence the offer, limited as it was in purpose, should have been received. No affidavit of defense was filed by Passel. The offer of the writ of scire facias against him, for the purpose of proving his possession and right of possession of the premises, was likewise admissible as to him. The court below subsequently recognized that its action as respects Passel was wrong; but reasserted that no error had been committed as to Hartman, Toll and Rossman.
Proof that Hartman, Toll and Rossman owned the property abutting on the defective sidewalk was the very foundation of the city's right to recover over against them. Without it no superstructure of liability could be erected. Hence, in refusing to admit the city's offer in this respect the court below deprived the city of the foundation upon which its claim for reimbursement from the owners rested.
At the conclusion of the city's case, counsel for Hartman, Toll and Rossman moved for a non-suit on the ground "that according to the witnesses produced by the city there was absolutely nothing the matter with this pavement, and therefore, assuming for the sake of argument, that they are the owners, there is nothing to charge them with liability." With the basic evidence, on which the city's claim for reimbursement rested, ruled out, the court was obliged to enter a non-suit against the "owners"; but not for the reason advanced by their counsel. The evidence of the city's witnesses exculpating it from blame had no effect on the right of the city to claim reimbursement from those primarily liable for the defect in the sidewalk, if the jury believed the plaintiff's witnesses rather than the city's. The case as respects the additional defendants, must be viewed the same as if *234
the city had been obliged to pay the claim of the plaintiffs and had sued the owners in assumpsit, after due notice of the pendency of the prior suit, for reimbursement. In such case the fact that the city had claimed, and its witnesses had sworn, on the trial of the original action, that there was no hole in the sidewalk as claimed by the plaintiffs, could not be used to defeat its right of action against the "owners", after a verdict in favor of the original plaintiffs settled that there was such a hole. Nor could it here. Nor was the city's right of reimbursement barred by the statute of limitations as claimed by the additional defendants. The statute of limitations in such case does not begin to run against the city in favor of the property owner until the date of the judgment against the city or payment thereof: Ashley v. Lehigh Wilkes-Barre Coal Co.,
The court, of its own motion, also entered a non-suit as to the city's claim against Passel.
Counsel for the "owners" now argue in this court that because several witnesses for the city, — policemen on their beat, — referred to the property as being in possession of Cassel, as tenant, there could be no liability on the part of the owners; but this by no means follows.
The additional defendants offered no evidence. The lease annexed to the "owners'" affidavit of defense was not offered in evidence and cannot be considered by us on this appeal. Notwithstanding the lease, the owners of the property might still be liable to third persons, and to the city, by way of reimbursement, (1) if the sidewalk was in a defective condition when the lease to Passel was made; or, (disjunctively), (2) irrespective of its condition at the time the lease was made, if notice of a permanent defective condition requiring its relaying or repair, was given the owners prior to the accident.
We have had occasion to consider this matter in *235
the case of Briggs v. Phila. et al.,
This responsibility is based on the statutory duty imposed on the owner of real estate to keep the sidewalks or footways in good condition. See Acts of March 25, 1805, Sec. 5, 4 Sm. L. 233; April 10 1826, Sec. 2, 9 Sm. L. 216; April 16, 1838, P.L. 626, Sec. 3; February 2, 1854, P.L. 21, Sec. 40, p. 43; May 16, 1891, P.L. 75, Sec. 11. These statutes authorize the City of Philadelphia to require the laying of sidewalks and the repair of the same by the owner of the property abutting thereon, and on his failure to lay or repair such walks, after notice to do so, the municipal authorities may do the necessary work and assess the cost upon the property, in front or along which said walk so laid or repaired shall be situate, and file a lien therefor, or collect the same by action of assumpsit. The "owner" referred to in the Act of 1891, supra, does not mean "the tenant in possession," as was the construction in Schott v. Harvey,
As respects sidewalks along public streets, the public has the right to use the whole of the unoccupied portion from the building line to the curbstone, and the primary duty of keeping it in repair rests upon the owner of the abutting premises: McLaughlin v. Kelly,
And the owner is not relieved of responsibility or liability by the fact that the sidewalk was in good condition when the premises were leased to the tenant, provided the defect complained of was a permanent one and notice of its existence had been given the owner. In both Brookville v. Arthurs,
We find nothing in the recent cases of the Supreme Court which overrule these prior decisions.
In Phila. v. Merchant Evans,
The Supreme Court has time and again impressed upon us that "General expressions, in every opinion, are to be taken in connection with the case in which those expressions are used": Kates' Est.,
The distinction, as respects the liability of the owner, between permanent defects in the sidewalk, requiring its relaying or substantial repair, and merely temporary or transient dangers, such as snow and ice, (New Castle v. Kurtz, supra; Mitchell v. Sinn, *238
There is no similarity whatever between the responsibility, if any, resting on an owner out of possession, where the tenant fails to remove snow or ice, or lets a cellar door in the sidewalk remain open, or one of his patrons lets a milk bottle fall on the pavement, *239
(Wolk v. Pittsburgh Hotels Co.,
As was said in Bears v. Ambler,
The statutory right of the city to notify an owner, out of possession, that the sidewalk abutting his property is worn out or permanently defective and to require him to relay or repair the same is undisputed; so is its statutory right, on the owner's failure to relay or repair the sidewalk pursuant to such notice, to do it for him and file a lien against the property for the cost thereof. With this statutory duty resting on the owner, even when the premises are leased to a tenant, it would be an anomalous condition of affairs if after the city had notified the owner to relay or repair the sidewalk, but before the work had been done, due to his neglect to obey the notice, an *240
injury to a pedestrian should occur and the city was mulcted in damages by the injured party, if the city had no recourse over against the owner for reimbursement of the damages caused by his neglect, but was confined to a claim against a probably irresponsible tenant. We do not so construe the decisions. "Whenever the abutting owner is by law bound to keep the highway in repair, he is liable for an injury caused by his negligence,
and ...... the municipality, if subjected to an action by reason of such negligence, has recourse over to him: Brookville v. Arthurs,
In appeals Nos. 73 and 75 October Term, 1932, the judgments are affirmed.
In appeals Nos. 72 and 74 October Term, 1932, the assignments of error are sustained; the judgments are reversed, the judgments of non-suit are stricken off and a new trial is awarded.