172 Pa. 407 | Pa. | 1896
Opinion by
Peter Schenk and H. Schreideman owned two lots fronting one hundred and ninety-four feet on Jefferson street in Butler borough; the sidewalks were of boards, for which they desired to substitute permanent stone pavement, and accordingly they let the contract for the preparatory grading to Samuel Kidd. The grading was somewhat heavy, being a cut at one end and a fill at the other; the contractor commenced the work on March 16,1892, and continued it until completed. During the progress of the work, large piles of earth and rubbish were deposited on the street, which last, between the curbs, was twenty-five feet wide; a large part of this earth and rubbish was removed each day, but generally there remained each night a
Clearly, it was the duty of the borough authorities, under such circumstances, to exercise more watchfulness, than under those involving no such danger to the traveling public.
The second assignment is to the instruction on the right of the lot owner to obstruct the street with the rubbish. The
The third assignment is to the answer of the court to plaintiff’s third point. Peter Schenk, one of the improving lot owners, who, through his contract with Kidd, deposited the rubbish, was a member of the borough council; therefore, plaintiff put this point to the court: “That if Peter Schenk, a member of the town council, had knowledge of this obstruction, it visits notice on the municipal authorities.” To this the court answered as follows: “In the absence of any evidence showing that the care of the streets had been committed to particular members of the town council, every member thereof must be taken as the agent of the borough. For that purpose a notice to a member must be regarded as notice to the body to which he belonged. It does not appear how frequently borough councils met, and it would be intolerable to hold that the obstruction must be permitted to continue until the body would be assembled in an official meeting.” In fact, this was no answer to the point, and if the verdict had been the other way, plaintiff might-well have complained of the answer as not responsive to his point. The court was asked to say that if Peter Schenk had knowledge of this obstruction, that was notice to the borough; this involved, first a question of fact, whether he had knowledge ; it did not follow, because he had contracted with Kidd to make the excavation, he had knowledge that the contractor was leaving any portion of the material on the street, so as to impede or make dangerous travel; a careful scrutiny of Schenk’s
The case, in this particular, really went to the jury on the instructions in the general charge as follows: “ The law assumes that after a certain time they shall take notice of obstructions of such a character. That depends upon the circumstances of the case, to be sure, and how long the obstruction may remain upon the street, in order to charge the officers of the borough with notice. We refer you to the rule, hereinbefore laid down with regard to the degree of diligence which the officers are to exercise according to the extent of the use of the street, and other facts which might bring knowledge home to them, and of which they should take notice.” The same instruction, in substance, was given in the answer to defendant’s second point, thus : “ Though if you should conclude the particular pile of rubbish on which the plaintiff was injured had not been on the street over a day or two, if you find that others of a similar character had previously, from time to time, occupied substantially the same place, so that the one complained of was but a later one of a series of such obstructions, the municipality may be affected with notice, if, considering the extent of travel upon Jefferson street, the demands of the public thereon, and the period of time over which such obstruction extended, and in view of the law already stated as to the duties of borough officers in this behalf, you think they should, in the exercise of reasonable diligence, have known of the obstruction.”
• Considering the whole charge, on the question of notice, the case was clearly and correctly submitted to the jury. They were instructed that they might infer, if from the character of the obstruction it was conspicuous or noticeable, and if it had been long continued, that the borough had notice of it.
While the court came dangerously near giving the erroneous instruction asked for, it did not in fact give it, and the jury went to their room controlled by the correct instructions in the general charge, and the answer to defendant’s second point. Therefore this assignment of error is not sustained.
The fourth and fifth assignments raise in effect the same question as the second and require no further notice.
The sixth is to the refusal of a prayer for peremptory instruction for defendant. The case was clearly one for the jury, and the court could not, without error, have withdrawn it from them. All the assignments of error are overruled, and the judgment is affirmed.