of the plaintiff's injury? 2nd. Was the defect in the sidewalk such a want of repairs as would render the defendant liable for damages for an injury resulting therefrom? Upon these two propositions, substantially, the counsel for the defendant based his argument before the referee.

The referee found that the defect in the sidewalk was the cause of the plaintiff's injury. On the second question he says: As has already been stated, no denial was made on the part of the defendant that there was such a defect in the sidewalk as that described by the witnesses, nor was it denied that it was within the corporate limits of the said Borough of Wrightsville. And while the defect was repaired by employes of the Northern Central Railway Company, there is no evidence that the said company had any such control over the said sidewalk as would impose upon it the duty to remedy the defect. So far as the evidence shows the sidewalk was under the control of the defendant, and what the employees of the railroad company did was done entirely gratuitously. By the terms of its charter the defendant was clothed with power to regulate the public highways within the corporate limits. By the records of the Court of Quarter Sessions of the Peace of York County, it appears that under date of August 26, 1867, a decree was made "that the said Borough of Wrightsville shall hereafter be subject to the restrictions and possess all the powers and privileges conferred by said general borough law, approved the 3rd day of April, 1851;" and by Articles 5 and 6 of Section 2 of said Act they are empowered "to require and direct the grading, curbing, paving and guttering of the side or foot walks, by the owner or owners of the lots of ground respectively fronting thereon, in accordance with the general regulations prescribed: to cause the same to be done on failure of the owners thereof, within the time prescribed by the general regulations, and to collect the cost

of the work and materials with twenty per centum advance thereon." In pursuance of the power thus conferred, by an ordinance of date June 22, 1868, which was offered in evidence and marked ““A. J. B. Z."" enacted and ordained that, from and after thirty days from the date of said ordinance the following regulations relative to sidewalks or pavements, gutters and culverts, shall obtain and have full force and power with other by-laws of this corporation, to wit: "Section 2. Be it further ordained and enacted by the authority aforesaid, that from and after the expiration of the aforesaid thirty days, it shall become the duty of the property owners of said Borough of Wrightsville, to lay, or cause to be laid down or made, under the direction of the town council, or its committee on streets, &c., good and sufficient pavements or foot walks, of brick, stone, or other suitable material, at all points or places where the same shall be deemed necessary by the corporate authorities aforesaid, for the convenience and comfort of citizens, together with the paving of necessary gutters and culverts, and laying of sufficient crossings of the same, as shall be directed by the counsel or its committee aforesaid."

Section 3. Be it further enacted: "That in case of failure or neglect on the part of any person or persons, property owner or owners, as aforesaid, who shall have been duly notified to make and pave the foot walks, gutters, or culverts in front of his or her property, to make or commence the improvement required for the space of ten days from the date of such notice given, then the same shall be done by the corporation, and the costs thereof for labor, material, &c., furnished and supplied, together with twenty per centum additional, be collected from such delinquent as by law provided." The duty of keeping its sidewalks or pavements in proper repair was thus clearly imposed upon the said defendant, and a neglect to do so as clearly renders it liable to respond

in damages for an injury resulting from a neglect of such duty. In the case of Erie City v. Schwingle, 10 Harris 384, Black, Chief Justice, delivering the opinion of the Supreme Court, said: "The principal question in this case is, whether a city corporation, bound by its charter to keep its streets in repair, is liable for an injury occasioned by neglect to do so. Every highway or thoroughfare, which the public has a right to use, must be kept, by somebody, in such order that it can be safely used, and if any serious injury happens to an individual in consequence of its bad condition, those who are bound to repair must answer in damages. In Beatty v. Gilmore, 4 Harris 463, a person who had dug a hole in the pavement, and violated his duty by leaving it exposed, was held liable by a party who fell into it and broke his leg. In Bartlett v. Crozier (15 Johnson 250,) an action was sustained against an overseer of the highway who had the means of repairing the roads in his hands, but neglected to do it, and caused a loss, to the plaintiff. In Townsend v. The Susquehanna R. R. Co. (6 Johnson 90) a private corporation which had failed to keep up one of its bridges, was held liable for a similar loss. In Dean v. New Milford Township (5 W. & Ser. 545,) it was decided that damages might be recovered against a township for the injury sustained in consequence of the non-repair of a public road. And in the Commisssioners of Kensington v. Wood (10 Barr 93,) it was said by this court that the liability of the corporation for any injury arising from the unskillful, inartificial, or improper manner in which the paving and grading of a street was done, could not be controverted. To these may be added the case of Pittsburgh v. The Owners of the Steamer Mary Ann (10 Harris 54, &c.,) in which we held that the city corporation, having the care of a port, was responsible for the loss of a vessel which had been wrecked for the want of a safe landing place. I have cited these several

cases to show that a party bound to repair, whether it be an individual, a private corporation, a township, district or city, must perform the duty or pay, in an action on the case, for all injuries to persons or property, which may be caused by the omission." In McLaughlin v. City of Corry, 27 Smith 109, Justice Gordon delivering the opinion of the Supreme Court, said: "That a municipal corporation, such as a city, borough, township, or county is liable for damages arising from the neglect of its officers in not keeping its streets, roads, and bridges over which it has jurisdiction in proper repair, is established by many authorities. Among others, Dean v. New Milford Township, 5 W. & S. 545; Pittsburgh v. Grier, 10 Harris 54; Allentown v. Kramer, 23 P. F. Smith 406; Humphreys v. Armstrong County, 6 P. F. Smith 204. These cases proceed upon the principle that the various municipalities have full and complete control of and power over the roads, streets and bridges within their several precincts, and that they are charged with the duty of their proper construction and repair." .. "If the city authorities were negligent in allowing a dangerous abstruction to exist in the public highway, which they could have removed, and the plaintiff was injured thereby, without any fault of his own, the city was undoubledly liable for the damages which he suffered." In the case of Norristown v. Moyer, 17 P. F. Smith, 356, Judge Ross, who tried the case in the court below, and whose charge to the jury was afterwards adopted by the Supreme Court, says on page 362, "Under this charter the repairs of streets, and the removal of nuisances therefrom is a duty clearly enjoined by statute, and it is authoratively ruled, that a corporation, which is bound by its charter to keep its streets in repair and remove nuisances therefrom is liable for an injury occasioned by its neglect to do so, and it is not material whether the neglect was wilful or not." Nor was it necessary

that the defendant should have had actual notice of the defect in the said sidewalk to render it liable for damages. If it reIf it remained there long enough to attract general attention the corporation was affected with constructive notice; McLaughlin vCity of Corry, supra. But in this case the defendant had actual notice of the defect in the sidewalk through its then supervisor, Joseph Shenberger, who testified that it was his duty as said supervisor to keep the streets and bridges in repair; that he saw this hole in the sidewalk, and yet made no effort to repair it, or have it repaired, until after the plaintiff was injured. The referee holds that it was the duty of the defendant, thus affected with actual notice of the existence of the defect, to have caused the owner of the property to put the sidewalk in a safe condition, and upon failure of the owner to do so to have caused the same to be done at the expense of the owner. Not having done either, the referee finds it was guilty of negligence, and that it must respond in damages to the plaintiff. The remaining question to be considered is the amount of damages to which the plaintiff is entitled. In the case of the Pennsylvania Railroad Co. v. Allen, 3 P. F. Smith 276, it is held to be the law "that in actions for personal injuries, sustained by a passenger in consequence of the negligence of a passenger carrier, plaintiffs are entitled to recover pecuniary compensation for pain suffered; and that juries in assessing damages may consider this as an element." In the case of Laing v. Colder, 8 Barr, 479, Judge Bell, who delivered the opinion of the court, says: "In estimating damages the jury may consider not only the direct expenses incurred by the plaintiff, but the loss of his time, the bodily suffering endured, and any incurable hurt inflicted; for these may be classed among the necessary results." In the case of the Pennsylvania and Ohio Canal Co. v. Graham, 13 P. F. Smith 290, the same doctrine is reasserted. In the

case of McLaughlin v. The City of Corry, supra, the plaintiff's seventh point on the trial of the case, in the court below, was as follows: "In estimating the damages the jury should allow not only for the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconvenience he is subject to, and for the pain and suffering, bodily and mental, already experienced, and likely to be yet experienced, as well as for the pecuniary loss he has sustained, and is likely to sustain during the remainder of his life, from the disabled condition of his arm, and the difference it has occasioned in his ability to earn wages." The court below refused to affirm this point, and the Supreme Court afterwards, through Judge Gordon, who delivered the opinion, said that the point should have been affirmed by the court below. The evidence of Dr. Thompson shows that the plaintiff was under his treatment from a day or two after the injury was sustained, to wit: the 30th day of August, 1880, until the 18th day of November of the same year, that being the last time he prescribed for him. Dr. Thompson also testified that the plaintiff suffered very severe pain in consequence of the injury to his ankle; that at the last time he examined the foot, to-wit: on the 3rd day of June, 1881, some nine months after the injury was received, the pain caused by pressure upon the injured parts, and by the moving of the foot inwards and upwards, indicated to him that the parts were not entirely reunited. There was no evidence given to show the permanent disability of the plaintiff to follow his usual avocation, other than that if his ankle continued as it was when last examined, his ability to follow his avocation would be to some extent impaired. The plaintiff testified that he was prevented from attending to his usual business until the second week of November of the year he was injured; that he was able to earn some days one dollar; some

days a dollar and a half, at his usual business, which was that of a day laborer. The referee having carefully considered all the evidence and the rules of law applicable to like cases, awards in favor of the plaintiff and against the defendant the sum of three hundred dollars ($300.00) damages with costs of suit.

To this report exceptions were filed by the defendant. Mr. Gibson having been elected judge, Messrs. Blackford & Stewart appeared for the defendant.

February 11, 1884, WICKES, P.J. The referee has found that a defect in the highway caused the injury complained of, and has determined the amount of damages sustained. These questions are eliminated from the consideration of the case at this time, not having been touched on the argument of the exceptions filed to the referee's report. The ground upon which we are asked to set the report aside, and enter judgment for the corporation defendant, is that the borough of Wrightsville is under the general borough law approved April 3, 1851, which does not, it is said, impose upon the corporate officers the duty to repair their sidewalks and streets,

and that hence, without proof of notice, and that hence, without proof of notice, no liability can be fixed upon them.

We will not attempt to enumerate the powers and duties conferred by the act in relation to the streets, lanes, alleys, &c. of the borough. Suffice it to say that it is manifest from a careful reading and considerations of its provisions, that it was the intention of the legislature to invest the municipal authorities with the management and control of the borough highways. This purpose of the legislature is referred to by Mr. Justice Woodward in delivering the opinion of the Court in Norwegian street, 31 P. F. S. 353, where in commenting upon this act and others, he says "the provisions quoted from the

general legislative intent to secure uniformity of plan, and adequate municipal supervision in the establishment and maintenance of borough highways." And again, said the same Justice, "it has been the policy of all recent legislation relating to boroughs of the Commonwealth to subject the highways within their limits to the control of the municipal authorities as exclusively as was consistent with the duty of affording protection to the interests of individual citizens." But we are met with the argument that notwithstanding the large powers given the borough officers in relation to the highways, that nowhere is the duty to keep them in repair, imposed by the statute. In totidem verbis it is not.

But substantially the same argument was addressed to the Court in re Vacation of Osage street, 9 Nor. 117, when it was objected that the borough officers had no power to vacate a street, because the acts did not, in terms, confer it. But the Supreme Court said "it is true that in the second section enumerating the powers of borough officers *** the word vacate does not occur. But all the provisions of the act must be considered," and it was held the act conferred this power. this opinion much stress was laid upon the

In

following language contained in the section referred to "they shall have all other needful jurisdiction over the same," to wit the streets, a power afterwards repeated in the same act, 1 Purdon 174, pl. 92.

We do not think the duty to supervise and repair can be escaped because the act does not in so many words charge the corporate officers with it.

We do not mean that municipal corporations are in any sense insurers of the safety of their highways, or of those who pass over them-we only mean to decide that under a statute conferring such powers and duties as are contained in the act of 1851, something more is to be done by the borough authorities, than sit quietly