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VOL. IV.

No 50.

YORK LEGAL RECORD. on the part of both plaintiff and defend

ant that the place where the alleged injury THURSDAY, FEBRUARY 14, 1884.

occurred is in front of what was formerly

known as the Northern Central Depot, COMMON PLEAS.

on the west side of Front street, between

Hellam and Chestnut streets, in said Siltzer v. Wrightsville Borough. Borough of Wrightsville.

It appears Borough—-Negligence--Board Walk--- further, from the evidence, that the sideRepair of.

walk along the west side of Front street

is composed of brick, stone and plank; The General Borough Law of 1851 invests municipal authorities with the management and control of the that is to say, some of the houses have borough highways, and this power includes the maintenauce of such highways.

brick pavements, some wooden paveThe duty to supervise and repair cannot be escaped ments, and others stone pavements in because the act does not in so many words charge the corporate officers with it.

front of them. The sidewalk where the It is the duty of the corporate officers to exercise reasonable vigilance in the supervisivo and repair of struct- alleged accident occured was composed ures over which their jurisdiction extends.

of pieces of plank some fifteen or sixteen Mere absence of notice does not necessarily absolve a municipal corporation from the charge of negligence. feet long and about a foot in width, which

Where the evidence shows that the defect in the board- were laid lengthwise, parallel with the walk was patent before the accident, and could, with the exercise oi reasonable diligence on the part of those hav- street, upon wooden sills placed at proper ing charge of it, have beeu discovered and repaired, actual notice is upuecessary.

distances apart.

Four of the planks Exceptions to referee's report.

laid side by side constituted the sidewalk This was a suit for damages brought by at this place. The length of the sidewalk plaintiff against defendant for injuries re

was not definitely stated in the testiceived by reason of a defective sidewalk, mony, nor is it material to the question at H. L. Fisher, Esq., for the plaintiff, and

issue. It was not disputed on the part of

the defendant that there was a defect in John Gibson, Esq., for the defendant,

the sidewalk at the place where the plainappeared before the referee, James B. Ziegher, Esq., and conducted the case

tiff alleges he was injured. The evidence before him.

on the part of the defendant shows that

after the alleged injury was sustained the From the referee's report we make the defect in the sidewalk was repaired by following extract :

employes of the Northern Central Rail“This is an action of trespass on the way Company. The testimony of both case brought by the said Charles K. Silt- sides shows that the defect or hole in the zer, plaintiff, to recover damages for an sidewalk was from two and a half to alleged injury sustained by him on a cer- two and three-quarters inches in width tain public sidewalk, in the said Borough and about two feet long, and Adam Wolf of Wrightsville, on the night of the zoth (the first witness called by the defendant) of August, 1880. It appears from the evi- testified that he repaired the defect, and dence that by act of Assembly, entitled that 'right around the crack it looked as “An act to erect the towns of Wetphalia though it had rotted or decayed.' No atand Wrightsville into Borough” ap- tempt was made by the defendant to proved April 14, 1884, Pamphlet Laws show that the plaintiff was guilty of con1833 and 1834, page 313 and so on to page tributory negligence at the time he sus319, the said defendant became a corpora- tained the alleged injury. The referee is tion or body politic, and that it afterwards of opinion, therefore, that there are but accepted and became subject to the pro- two questions to be considered in the devisions of the general borough law of cision of this case; and they are: ist. 1851. It also appears from the evidence was the defect in the sidewalk the cause

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of the plaintiff's injury? 2nd. Was the of the work and materials with twenty defect in the sidewalk such a want of re- per centum advance thereon.” In purpairs as would render the defendant liable suance of the power thus conferred, by for damages for an injury resulting there- an ordinance of date June 22, 1868, which from? Upon these two propositions, sub- was offered in evidence and marked "A. stantially, the counsel for the defendant J. B. Z.""' enacted and ordained that, from based his argument before the referee. and after thirty days from the date of said

The referee found that the defect in the ordinance the following regulations relasidewalk was the cause of the plaintiff's tive to sidewalks or pavements, gutters injury. On the second question he says : and culverts, shall obtain and have full

As has already been stated, no denial force and power with other by-laws of was made on the part of the defendant this corporation, to wit: “Section 2. Be that there was such a defect in the side- it further ordained and enacted by the walk as that described by the witnesses, authority aforesaid, that from and after nor was it denied that it was within the the expiration of the aforesaid thirty days, corporate limits of the said Borough of it shall become the duty of the property Wrightsville. And while the defect was owners of said Borough of Wrightsville, repaired by employes of the Northern to lay, or cause to be laid down or made, Central Railway Company, there is no under the direction of the town council, evidence that the said company had any or its committee on streets, &c., good and such control over the said sidewalk as

sufficient pavements or foot walks, of would impose upon it the duty to remedy brick, stone, or other suitable material, at the defect. So far as the evidence shows all points or places where the same shall the sidewalk was under the control of the be deemed necessary by the corporate defendant, and what the employees of the authorities aforesaid, for the convenience railroad company did was done entirely and comfort of citizens, together with the gratuitously. By the terms of its charter paving of necessary gutters and culverts, the defendant was clothed with power to and laying of sufficient crossings of the regulate the public highways within the same, as shall be directed by the counsel corporate limits. By the records of the or its committee aforesaid." Court of Quarter Sessions of the Peace of Section 3. Be it further enacted: “That York County, it appears that under date in case of failure or neglect on the part of of August 26, 1867, a decree was made any person or persons, property owner or "that the said Borough of Wrightsville owners, as aforesaid, who shall have been shall hereafter be subject to the restric- duly notified to make and pave the foot tions and possess all the powers and priv- walks, gutters, or culverts in front of his ileges conferred by said general borough or her property, to make or commence law, approved the 3rd day of April, the improvement required for the space 1851 ;' and by Articles 5 and 6 of Sec- of ten days from the date of such notice tion 2 of said Act they are empowered given, then the same shall be done by the "to require and direct the grading, curb- corporation, and the costs thereof for ing, paving and guttering of the side or labor, material, &c., furnished and supfoot walks, by the owner or owners of the plied, together with twenty per centum lots of ground respectively fronting additional, be collected from such delinthereon, in accordance with the general quent as by law provided." The duty of regulations prescribed : to cause the same keeping its sidewalks or pavements in to be done on failure of the owners proper repair was thus clearly imposed thereof, within the time prescribed by the upon the said defendant, and a neglect to general regulations, and to collect the cost do so as clearly renders it liable to respond

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in damages for an injury resulting from a

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cases to show that a party bound to reneglect of such duty. In the case of Erie pair, whether it be an individual, a private City v. Schwingle, 10 Harris 384, Black, corporation, a township, district or city, Chief Justice, delivering the opinion of must perform the duty or pay, in an acthe Supreme Court, said: "The principal tion on the case, for all injuries to persons question in this case is, whether a city or property, which may be caused by the corporation, bound by its charter to keep omission." In McLaughlin v. City of its streets in repair, is liable for an injury Corry, 27 Smith 109, Justice Gordon deoccasioned by neglect to do so. Every livering the opinion of the Supreme Court, highway or thoroughfare, which the pub- said: “That a municipal corporation, lic has a right to use, must be kept, by such as a city, borough, township, or somebody, in such order that it can be county is liable for damages arising from safely used, and if any serious injury hap- the neglect of its officers in not keeping pens to an individual in consequence of its streets, roads, and bridges over which its bad condition, those who are bound to it has jurisdiction in proper repair, is repair must answer in damages. In Beatty established by many authorities. Among v.Gilmore, 4 Harris 463, a person who had others, Dean v. New Milford Township, dug a hole in the pavement, and violated 5 W. & S. 545; Pittsburgh v. Grier, 10 his duty by leaving it exposed, was held Harris 54; Allentown v. Kramer, 23 P. liable by a party who fell into it and broke F. Smith 406; Humphreys v. Armstrong his leg. In Bartlett v. Crozier (15 John- | County, 6 P. F. Smith 204. These cases son 250,) an action was sustained against proceed upon the principle that the varian overseer of the highway who had the ous municipalities have full and complete means of repairing the roads in his hands, control of and power over the roads, but neglected to do it, and caused a loss, streets and bridges within their several to the plaintiff. In Townsend v. The precincts, and that they are charged with Susquehanna R. R. Co. (6 Johnson 90) a the duty of their proper construction and private corporation which had failed to repair.”

If the city authorities keep up one of its bridges, was held liable were negligent in allowing a dangerous for a similar loss. In Dean v. New Mil. abstruction to exist in the public highway, ford Township (5 W. & Ser. 545,) it was which they could have removed, and the decided that damages might be recovered plaintiff was injured thereby, without any against a township for the injury sus fault of his own, the city was undoubledly tained in consequence of the non-repair liable for the damages which he suffered." of a public road. And in the Commiss- In the case of Norristown v. Moyer, 17 sioners of Kensington v. Wood (10 Barr P. F. Smith, 356, Judge Ross, who tried 93,) it was said by this court that the the case in the court below, and whose liability of the corporation for any injury charge to the jury was afterwards adopted arising from the unskillful, inartificial, or by the Supreme Court, says on page 362, improper manner in which the paving “Under this charter the repairs of streets, and grading of a street was done, could and the removal of nuisances therefrom not be controverted. To these may be ad- is a duty clearly enjoined by statute, and ded the case of Pittsburgh v. The Owners it is authoratively ruled, that a corporaof the Steamer Mary Ann (10 Harris 54, tion, which is bound by its charter to &c.,) in which we held that the city cor- keep its streets in repair and remove poration, having the care of a port, was nuisances therefrom is liable for an injury responsible for the loss of a vessel which occasioned by its neglect to do so, and it had been wrecked for the want of a safe is not material whether the neglect was landing place. I have cited these several wilful or not.” Nor was it necessary

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that the defendant should have had actual case of McLaughlin v. The City of Corry, notice of the defect in the said sidewalk supra, the plaintiff's seventh point on the to render it liable for damages. If it re- trial of the case, in the court below, was mained there long enough to attract gen- as follows: "In estimating the damages eral attention the corporation was affected the jury should allow not only for the with constructive notice; McLaughlin v- direct expenses incurred by the plaintiff City of Corry, supra. But in this case by reason of the injury, but also for the the defendant had actual notice of the privation and inconvenience he is subject defect in the sidewalk through its then to, and for the pain and suffering, bodily supervisor, Joseph Shenberger, who testi- and mental, already experienced, and fied that it was his duty as said supervi- likely to be yet experienced, as well as sor to keep the streets and bridges in re- for the pecuniary loss he has sustained, pair ; that he saw this hole in the side- and is likely to sustain during the rewalk, and yet made no effort to repair it, mainder of his life, from the disabled conor have it repaired, until after the plaintiff dition of his arm, and the difference it has was injured. The referee holds that it occasioned in his ability to earn wages." was the duty of the defendant, thus af- The court below refused to affirm this fected with actual notice of the existence point, and the Supreme Court afterwards, of the defect, to have caused the owner through Judge Gordon, who delivered of the property to put the sidewalk in a the opinion, said that the point should safe condition, and upon failure of the have been affirmed by the court below. owner to do so to have caused the same to The evidence of Dr. Thompson shows be done at the expense of the owner. that the plaintiff was under his treatment Not having done either, the referee finds from a day or two after the injury was it was guilty of negligence, and that it sustained, to wit: the 30th day of August, must respond in damages to the plaintiff. 1880, until the 18th day of November of The remaining question to be considered the same year, that being the last time he is the amount of damages to which the prescribed for him. Dr. Thompson also plaintiff is entitled. In the case of the testified that the plaintiff suffered very Pennsylvania Railroad Co. v. Allen, 3 P. severe pain in consequence of the injury F. Smith 276, it is held to be the law to his ankle ; that at the last time he ex"that in actions for personal injuries, sus amined the foot, to-wit: on the 3rd day

: tained by a passenger in consequence of of June, 1881, some nine months after the the negligence of a passenger carrier, injury was received, the pain caused by plaintiffs are entitled to recover pecuniary pressure upon the injured parts, and by compensation for pain suffered ; and that the moving of the foot inwards and upjuries in assessing damages may consider wards, indicated to him that the parts this as an element." In the case of Laing were not entirely reunited.

There was v. Colder, 8 Barr, 479, Judge Bell, who no evidence given to show the permanent delivered the opinion of the court, says : disability of the plaintiff to follow his “In estimating damages the jury may usual avocation, other than that if his consider not only the direct expenses in- ankle continued as it was when last excurred by the plaintiff, but the loss of his amined, his ability to follow his avocatime, the bodily suffering endured, and any tion would be to some extent impaired. incurable hurt inflicted; for these may The plaintiff testified that he was prebe classed among the necessary results." vented from attending to his usual busiIn the case of the Pennsylvania and Ohio ness until the second week of November Canal Co. v. Graham, 13 P. F. Smith 290, of the year he was injured ; that he was the same doctrine is reasserted. In the able to earn some days one dollar; some

VOL. IV.

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YORK LEGAL RECORD. , several statutes referred to, indicate the

general legislative intent to secure uniTHURSDAY, FEBRUARY 21, 1884.

No 51. formity of plan, and adequate municipal

supervision in the establishment and maindays a dollar and a half, at his usual busi- tenance of borough highways. And ness, which was that of a day laborer. | again, said the same Justice, “it has been The referee having carefully considered the policy of all recent legislation relating all the evidence and the rules of law ap- to boroughs of the Commonwealth to subplicable to like cases, awards in favor of ject the highways within their limits to the plaintiff and against the defendant the the control of the municipal authorities as sum of three hundred dollars ($300.00) exclusively as was consistent with the duty damages with costs of suit.

of affording protection to the interests of To this report exceptions were filed by

individual citizens.” But we are met with the defendant. Mr. Gibson having been

the argument that notwithstanding the elected judge, Messrs. Blackford & Stew- large powers given the borough officers art appeared for the defendant.

in relation to the highways, that nowhere

is the duty to keep them in repair, imFebruary 11, 1884, WICKES, P.J. The

posed by the statute. In totidem verbis referee has found that a defect in the high- it is not. way caused the injury complained of, and

But substantially the same argument has determined the amount of damages

was addressed to the Court in re Vacasustained. These questions are eliminated from the consideration of the case at this

tion of Osage street, 9 Nor. 117, wben it time, not having been touched on the ar

was objected that the borough officers had

no power to vacate a street, because the gument of the exceptions filed to the re

acts did not, in terms, confer it. But the feree's report. The ground upon which we are asked to set the report aside, and Supreme Court said “it is true that in the

second section enumerating the powers of enter judgment for the corporation defendant, is that the borough of Wrightsville borough officers *** the word vacate

does not occur. is under the general borough law approv- the act must be considered,” and it was

But all the provisions of ed April 3, 1851, which does not, it is said,

held the act conferred this power. In impose upon the corporate officers the duty to repair their sidewalks and streets,

this opinion much stress was laid upon the and that hence, without proof of notice, following language contained in the sec

tion referred to "they shall have all other no liability can be fixed upon them.

needful jurisdiction over the same," to wit We will not attempt to enumerate the the streets, a power afterwards repeated powers and duties conferred by the act in

in the same act, i Purdon 174, pl. 92. relation to the streets, lanes, alleys, &c. of

We do not think the duty to supervise the borough. Suffice it to say that it is manifest from a careful reading and con

and repair can be escaped because the act siderations of its provisions, that it was the does not in so many words charge the intention of the legislature to invest the corporate officers with it. municipal authorities with the manage

We do not mean that municipal corment and control of the borough high- porations are in any sense insurers of the ways. This purpose of the legislature is safety of their highways, or of those who referred to by Mr. Justice Woodward in pass over them—we only mean to decide delivering the opinion of the Court in that under a statute conferring such powNorwegian street, 31 P. F. S. 353, where ers and duties as are contained in the act in commenting upon this act and others, of 1851, something more is to be done by he says the provisions quoted from the i the borough authorities, than sit quietly

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