Schlippert v. Orth, 75 Pa. Super. 572

Schlippert v. Orth

75 Pa. Super. 572 | Pa. Super. Ct. | 1921

Opinion by

Head, J.,

The plaintiff in his own right, and as the next friend of his minor daughter, brought this action of trespass to recover damages for personal injuries sustained by the girl, and the consequent expense incurred by the father.

The defendant was the owner and occupant of a building in the City of Reading. An excavation had been made under the sidewalk in front of the building and the space used as a vault of some character in connection with the building. The sidewalk itself was supported by a brick arch, constituting the roof of the vault. It *574appears the excavation had been made a long time ago, although the exact date of it is not disclosed in the record. On the evening of the 11th of February, 1918, the daughter of the plaintiff and another young lady were walking on this sidewalk passing the building of the defendant. Without any warning the sidewalk gave way and the two young ladies were precipitated into the vault, sustaining injuries more or less serious in character. It appeared from the evidence that there had been an explosion in the gas mains of the gas company buried in the street, which was so violent in character as to blow up the manholes on the street which furnished access to the mains. There was of course no direct evi-. dence that this explosion was the immediate and proximate cause of the sudden sinking of the sidewalk a few days later. That result may have followed the explosion, or the roof of the vault may have given way through lapse of time, disintegration of material, or other natural causes. The gravamen of the complaint was that the law imposed upon the owner of the building the duty to keep the sidewalk in a reasonably safe condition of repair, and that the proper discharge of that duty would necessarily require a reasonable inspection of the support upon which the owner relied to hold up the sidewalk, that was, of course, a portion of the public highway; and more especially was that duty imposed after an explosion near by of the violence indicated by the testimony. It was shown as part of the history of the case, as developed by plaintiff’s evidence, that the owner of the building himself with a lighted candle, had gone into the vault a day or two after the explosion, and the like length of time before the accident, and observed nothing that led him to believe the safety of the roof of the vault supporting the sidewalk had been lessened. Was that such an inspection as a reasonably prudent and careful man should have made under all of the circumstances? The defendant was neither an engineer nor a mechanic, and the evidence in no way indicates *575that lie bad any special knowledge or experience that would enable him to determine with any degree of certainty what effect, if any, tbe explosion bad upon tbe arched roof of tbe vault. Tbe reasonable character of that inspection, or tbe lack of it, became tbe controlling question in determining whether or not tbe defendant bad negligently failed to discharge a duty imposed upon bim by tbe law. We are of opinion that was a question of fact which must necessarily have been submitted to tbe jury under proper instructions from tbe trial judge. No assignment of error questions tbe correctness of tbe instructions so given. Tbe defendant offered no evidence and rested bis case upon tbe proposition that tbe court was bound to declare as matter of law tbe evidence raised no question for submission to tbe jury. We are all of opinion that position is untenable. As a consequence tbe assignments of error must be overruled and tbe judgment affirmed.

Judgment affirmed.