Fornof v. Borough of Wilkinsburg

• Decision Date: 06 January 1913
• Docket Number: 81
• Parties: Fornof v. Wilkinsburg Borough, Appellant
• Court: Pennsylvania Supreme Court

86 A. 494

238 Pa. 614

Fornof v. Wilkinsburg Borough, Appellant

No. 81

Supreme Court of Pennsylvania

January 6, 1913

Argued November 1, 1912

Appeal, No. 81, Oct. T., 1912, by defendant, from judgment of C.P. No. 1, Allegheny Co., Dec. T., 1907, No. 163, on verdict for plaintiff in case of Minnie Fornof v. Wilkinsburg Borough. Affirmed.

Appeal from award of jury of viewers. Before MACFARLANE, J.

At the trial plaintiff offered to prove by W. H. Bealafeld that he built a number of houses, and that he gave his assistance to his sister and his brother-in-law in the building of the houses in question in this case; that the houses were built originally to correspond -- after receiving the grade from the borough at the time -- the houses were built to suit the ideas of the builders to how high they should be above the grade; that a few years afterwards, in 1889, the Borough of Wilkinsburg changed the grade of Penn avenue, raising the grade in front of this property so that it threw the pavement upon the belt course at the eastern end of the property, for a few inches on the belt course, and extending over about one-third of the way across the building, diminishing to nothing; that the pavement in front of the building was then laid by the plaintiff to accommodate the buildings and that change of grade; that then came this second change of grade for which the present action is brought, and that the plaintiff is now required to raise her pavement five or six inches higher to accommodate this second change of grade. This for the purpose of laying the whole situation before the jury, and to show that at the first change of grade the pavement was laid as high on the building as it could be laid without considerable damage to the property; for the purpose as stated, of giving to the jury the full information as to the situation of the property at the time this second change of grade was made.

By the Court: Let me get your idea. Is it merely offered in that way to show that, as far as it was raised at the other change of grade, that practically that was all right, but that it was done as far as it could be done?

By Mr. McGirr: We don't claim any damages, anyhow. We let it go.

By the Court: That is not what I mean. As far as the damage to the physical condition of the property, as it was before, it was all right?

By Mr. McGirr: Yes, sir.

By the Court: I think, in view of the testimony, that is all right.

By Mr. Hindman: I would like your honor to give me an exception to it, for the reason it proposes to show the condition of this property as existing in 1889, or sixteen years prior to the date of the improvement for which damages are sought in this proceeding, and as immaterial, irrelevant and inadmissible.

By Mr. McGirr: Plaintiff desires to add, however, that this is not offered for the purpose of claiming any damages prior to 1905, but the claim for damages is restricted to the second change of grade, which occurred in 1905.

Objection overruled. Exception. (1)

Defendant offered these points:

3. If the jury finds that a sidewalk in front of plaintiff's property could have been laid to conform to the grade of the curb as established by the borough in its ordinance duly passed in 1903, in accordance with which the improvement in question was made, then any damage sustained by the property by reason of the failure of the plaintiff to lay such sidewalk, must be borne by the plaintiff and is not an element of damage to be considered in this suit.

Answer: This is affirmed, with the explanation that by the words 'grade of the curb' is meant 'grade at the curb,' and unless the jury find that the curb was set at a different grade from that established by the ordinance. If you do so find then the curb so set is the grade and not the ordinance. The purport of that point is that if the sidewalk could have been built in accordance with the borough ordinance, a slope of three inches down to whatever the grade point is, as you find, her not having done so in these last years would not be the fault of the borough, and if the water seeps down through that she would not be entitled to that as an element of damages. (2)

4. The grade of the curb in front of the plaintiff's property as established by the ordinance of the borough, duly passed in 1903, is the correct grade of the curb, and the only grade which the jury can consider as determining the grade of the sidewalk to be laid in front of plaintiff's property."

Answer: Affirmed, with the explanation that by the words 'grade of the curb' is meant the 'grade at the curb line,' unless the jury find that the curb was set at a different grade from that as established by the ordinance. If you do so find, then the curb as set is the grade and not the ordinance. (3)

Verdict and judgment for plaintiff for $3,500.00. Defendant appealed.

Errors assigned were (1, 4) rulings on evidence quoting the bill of exceptions; (2, 3) instructions as above; (5, 6) refusal to grant exceptions nunc pro tunc.

The judgment is affirmed.

James E. Hindman, with him W. B. Rodgers, for appellant, cited as to the refusal to grant exceptions nunc pro tunc: Morrison v. Nevin, 130 Pa. 344; Brennan v. Inc. Co., 148 Pa. 199; Collins v. Leafey, 124 Pa. 203; Mintzer v. Greenough, 192 Pa. 137; Hinnershitz v. Traction Co., 206 Pa. 91.

F. C. McGirr, with him John Marron, for appellee, cited as to the refusal of exceptions nunc pro tunc: Guillou v. Redfield, 205 Pa. 293; Com. v. Van Horn, 188 Pa. 143; Mead v. Pittsburgh, 194 Pa. 392; Dawson v. Pittsburgh, 159 Pa. 317.

Before FELL, C.J., BROWN, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The plaintiff claimed damages for a change of grade affecting certain real estate owned by her in the defendant borough she recovered a verdict and the defendant has appealed. It appeared at the trial that a grade had been established for the sidewalk in front of this property in 1889 and that the...