Campbell v. City of York

• Decision Date: 06 January 1896
• Docket Number: 467
• Citation: 33 A. 879,172 Pa. 205
• Parties: John Campbell v. City of York, Appellant
• Court: Pennsylvania Supreme Court

33 A. 879

172 Pa. 205

John Campbell v. City of York, Appellant

No. 467

Supreme Court of Pennsylvania

January 6, 1896

Argued June 4, 1895

Appeal, No. 467, Jan. T., 1895, by defendant, from judgment of C.P. York Co., Jan. T., 1894, No. 58, on verdict for plaintiff. Affirmed.

Trespass for damages for personal injuries suffered by a fall on a defective sidewalk. Before LATIMER, P.J.

At the trial it appeared that plaintiff, a man forty-seven years of age, on the night of March 18, 1893, fell on a defective sidewalk on East King street in the city of York, and was seriously injured.

The plaintiff offered in evidence the mortality tables in common use by life insurance companies of this country, showing the expectancy of life at different periods, more especially to show the expectancy of life at the age at which John Campbell received this injury, in connection with the plaintiff's testimony that the physical disability of the plaintiff is permanent, and will prevent him in the future from doing manual labor for his support; for the purpose of furnishing a measure of damages to the jury by which to calculate what plaintiff is entitled to recover, if they believe his testimony.

This was objected to as irrevelant and immaterial; not proper evidence for any purpose in the case under any circumstances that it would only be considered material, if it had been shown that the plaintiff had been doing regular work prior to the time of his fall; and that therefore it would be no guide, as the calculation would be based on nothing that he did prior to the time of the alleged accident.

It was further objected that plaintiff had proved that the troubles from which he was suffering would tend to shorten his life and might result in sudden death; and that these tables only apply to the expectancy of life of a man of average health. Therefore they would be no guide at all in this case.

The Court: I think I will admit the offer under the case in Kraut v. Frankfort & Southwark Philadelphia City Passenger Railway Company, 160 Pa. 329. It was admitted there in a case very similar to this. I do not know the purpose given for the admission of it; but it was admitted under objection and exception, and the Supreme Court did not assign it for error.

Exception to the defendant, and bill sealed by order of court. [1]

The material facts and testimony appear by the charge of the court, which was as follows:

The city of York is a municipal corporation. It is charged with the duty of maintaining the public highways within the city in such a condition of reasonable repair as will make them safe by day and by night for their ordinary use by those who have occasion to use them as highways. Its duty extends not only to the traveled portion of the street between the pavements, but to the sidewalks also. They have control over the height, the width, the slope, the grade, etc., of sidewalks, as well as of streets; and in exercising the powers and performing the duties which are imposed upon them in this behalf, as I said before, the measure of duty and the measure of responsibility is the maintaining of the highways or preserving them in such a condition as to make them safe and convenient for ordinary use or travel by foot passengers as well as drivers. I have already said that they have the power to control absolutely the grades, and the slopes, and the heights, and to exercise all these powers within the city of York to which the township of Springgarden is contiguous. Then, in our view of the law, the city legally exercised its powers through its duly authorized officials -- by the supervisors or commissioners, whichever they are -- highway commissioners, I believe they are called -- by absolutely controlling the grade at this particular point, and making the same eighteen, nineteen or twenty inches above the grade of the sidewalk in the adjoining township of Springgarden.

Now, this they had a right to do. They were not bound by any rule or principle of law to adopt the grade that existed in Springgarden township, or to maintain the previously existing grade. It was a matter within the power and within the discretion of the city, so far as to determine what that grade should be; and they did determine on grades eighteen or twenty inches above the grade, as I have said already, of the adjoining township; and the pavement was laid under the orders of competent city authorities to the grade given by the city surveyor. This made an offset, as has been repeated very often in this case -- a difference of elevation of about eighteen or twenty inches, so that anybody going east on that sidewalk must step down, when he reached that place, or go down eighteen or twenty inches to continue his walk.

The city having done this -- having made this change of grade -- in pursuance of lawful right, was bound to protect that place. They were bound to adopt some device, or use a device, which, notwithstanding that abrupt change of grade, would make the sidewalk still safe and convenient for ordinary passage by day and by night; for that is the measure of their responsibility.

Municipal corporations are not insurers against accident. Municipal corporations are not responsible for every injury or accident which occurs, even through slight defects in their highways and their sidewalks. They are held to due vigilance and care; and that always varies under the circumstances of each particular place, and each particular case. But they are bound to that degree of vigilance and care that will, as I have already said, make their highways safe and convenient for ordinary travel; but are not insurers against accident, or guarantors of the safety of those who use these highways.

Now, the manner in which this pavement was laid, and the manner in which this abrupt descent was erected, has been detailed to you in the evidence. Now, the city, or the private owner of the property on which the duty devolved, made a pavement to the grade that the city gave him; and this city, or the private owner, planked up the end of that pavement, supporting the planks by stakes, and filled up the pavement to that level; -- and, as Mr. Heckert said, laid the grade or pavement up to the level of the plank. Then the city caused to be constructed and placed there an inclined plane of timber, stated in the testimony as between five and six feet in length, and four or five feet in width, -- about the width or a little wider than the brick portion of the sidewalk, -- supporting one end of that with the plank that held up the bank and the upper pavement, and with the other end resting on the pavement below, with strips nailed across to prevent people from falling as they went down that slope; and thus left it after that had been done. That was the city's method of protecting this otherwise very dangerous place; -- this place which probably, -- certainly, according to the statements of some of the witnesses that testified very positively on that subject, -- this place which probably at least remained dangerous, notwithstanding that method of protection adopted by the city.

Now, there is one question for you to determine, -- and that is a question of fact that you must determine from the evidence, -- about which I do not want to lead you; which may be of importance; and yet in other aspects of the case it may not, notwithstanding it is a question of fact in this case: -- whether in putting that slope -- that platform -- there in this place in the manner I have described, the city did render this place safe and convenient for ordinary travel.

In addition to the duty of erecting, providing for, and protecting against the consequences of its own action, such as the change of grade that took place here, -- the elevation of sidewalks in pursuance of the orders of competent city authority, -- those are the acts of the city itself, -- of course the city must protect against the consequences of these, -- in addition to that the municipal corporation owes another duty. It "owes a duty of active vigilance to the public in respect to the condition of highways under its control," which binds it "to discover any defects therein within a reasonable time though those defects are caused by the negligence and acts of others. For practical purposes, the opportunity of knowing, in such cases, must stand for actual knowledge; and, therefore, where open defects in a highway have existed for a considerable time, notice of them is implied, and is imputed to those whose duty it is to repair them; in other words, they are presumed to have notice of such defects as they might have discovered by the exercise of reasonable diligence. Such notice may be imputed also where a defect, though temporary, has been of frequent occurrence during a long period." I have read from Shearman & Redfield on the Law of Negligence, section 369.

[And that brings up a question in this case about which little or nothing has been said in the testimony, or nothing has appeared in the address of either counsel, -- a matter in regard to which the testimony is in a singularly vague and unsatisfactory condition; and yet a question which, in my judgment, may become a very material, and, perhaps, controlling consideration in your determination of this case, -- and that is the projection of the plank placed there by the owner of the property to support this pavement above the township pavement, which, it was said by some of the witnesses, had sunk so as to leave a projection, the height of which no one I believe distinctly defined. If I am in error on that, I request to be corrected by counsel.

Mr. Wanner. Two inches, or more.

The Court: Two inches, or more. I believe that was said as the result of the measurement, -- projected two inches or more...