54 Pa. Super. 75 | Pa. Super. Ct. | 1913
Opinion by
The supplemental briefs filed by counsel on either side are devoted to the discussion of a proposition which does not seem to have been brought to the attention of the court below and which had no place in the original briefs presented to us. It may thus be stated in the language of Mr. Justice Brown in Betham v. Philadelphia, 196 Pa. 302: "If an act of a municipal corporation necessarily lies wholly outside of the general or special powers of the corporation as conferred by its charter or by statute, the corporation can in no event be liable to an action for damages, whether it directly commanded the performance of the act, or whether it be done by its officers without its express command.” The record exhibits no facts which would enable us to declare at this time that the borough may successfully invoke the doctrine stated to relieve it from liability in the present action. The record shows that the bridge which the borough undertook to build was located within the borough limits and carried one of its streets or avenues across Limekiln creek. The borough, incorporated under the act of 1851 and its supplements, had ample statutory authority to erect a bridge for that purpose, although it appears that the old bridge which was to be replaced by the new one was either a county bridge or at least that the county had aided in its construction. We see nothing in that fact which put it beyond the statutory power of the borough to replace it with a new and larger one adequate for the municipal wants. Whilst in various places reference is made in the record to
Concerning the remaining questions raised by the appeal but little need be added to the opinion filed by the learned judge below refusing to enter judgment for the defendant non obstante veredicto. The able counsel for appellant strenuously urges us to hold that the present case is on all fours with Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185, and McGuire v. Lehigh Valley Coal Co., 215 Pa. 618, and that its determination is to be controlled by the application of the legal principle enunciated in those cases. We cannot so hold under the facts before us. The plaintiff’s husband was employed as a laborer by the borough. It was the duty of the latter to provide him with a safe place to work. This duty was a primary one and therefore, if turned over by the borough to another, that person became a vice principal, for whose act or
We discover no reversible error in the admission of the expert testimony elicited from the witness Clark. He was subjected to a careful and thorough examination as to
The remaining assignment complains of the action of the trial court in discharging the defendant’s rule for a non pros, owing to the alleged laches of the plaintiff in filing her statement of claim. Under the very peculiar circumstances of this case, the determination of that question involved the exercise of a sound discretion by the learned trial judge, and we see no reason to believe that discretion was abused. For these reasons and those more fully set forth in the opinion of the trial judge refusing judgment non obstante veredicto the assignments of error are dismissed.
Judgment affirmed.