19 Pa. Super. 277 | Pa. Super. Ct. | 1902
Opinion by
This was an action of trespass brought against the city of Philadelphia and the Union Traction Company to recover damages for personal injuries sustained by the plaintiff in consequence of stepping into a hole; Avhich, it was alleged, was negligently allowed to be and remain in the pavement at a street crossing. To be more specific, the plaintiff alleged in her statement of claim: that it was the duty of the city to maintain or cause to be maintained in good and safe condition, order and repair, the streets and crossings of its several highways; that by ordinance duly passed by its councils the city imposed upon the Union Traction Company the duty of keeping certain highways, among them the highway in question, in good repair, “ under certain conditions, which ordinance Avas agreed to and accepted by said Union Traction Company;” that the defendants, neglecting and omitting their duty as aforesaid, permitted a dangerous hole or rut to be and remain in the asphalt pavement in the line of crossing from the west side of city hall to
The defendants severally pleaded not guilty and the case went to trial upon the issues thus raised. At the conclusion of the plaintiff’s evidence, each of the defendants moved for a nonsuit, which was granted as to the Union Traction Company and refused as to the city. The trial then proceeded as if the action had been brought against the city alone, and at the conclusion of the evidence introduced by the city, was submitted to the jury upon that theory. The trial resulted in a verdict in favor of the plaintiff, and after judgment thereon the city took this appeal.
No exception was taken by the city to the entry of the judgment of nonsuit in favor of the Union Traction Company, or to the refusal of the city’s motion for a nonsuit, and as to the latter it is clear that none could have been taken. Nor does it appear by the record as printed in the appellant’s paper-book that a motion was made, either by the plaintiff or the city, to set aside the nonsuit entered in favor of the Union Traction Company, that the motion was refused, and that an exception was taken to that ruling. We therefore overrule the first three specifications of error.
The matter assigned for error in the fourth specification is the refusal of the court to affirm the point: “ Under all the evidence in this case your verdict should be for the city of Philadelphia, defendant.” It is not argued in support of this assignment that there was not sufficient evidence of the city’s negligence to warrant submission of the case to the jury, nor ■that it was the duty of the court to take the case from the jury
Judgment affirmed.