City of Bradford v. Barry
| Decision Date | 01 July 1916 |
| Docket Number | 54 |
| Citation | 254 Pa. 303,98 A. 975 |
| Parties | City of Bradford, Appellant, v. Barry |
| Court | Pennsylvania Supreme Court |
Argued May 1, 1916
Appeal, No. 54, Jan. T., 1916, by plaintiff, from final order of C.P. McKean Co., Oct. T., 1913, No. 104, refusing to take off compulsory nonsuit in case of City of Bradford v. Edwin Barry and Ellen Barry, Executors of the last Will and Testament of John Barry, deceased; Ellen Barry, Edwin Barry Nora Barry Nash, Mary Barry Donovan, James Barry, John Clarence Barry, Frank Barry, George Barry, Leo Barry, and Ellen Barry, guardian ad litem of John Clarence Barry, Frank Barry, George Barry and Leo Barry, minor children of John Barry, deceased. Affirmed.
Trespass by municipality to recover over from a property owner damages paid to a pedestrian for injuries resulting from defects in sidewalk. Before BOUTON, P.J.
The facts appear by the opinion of the Supreme Court.
The lower court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.
Error assigned was in refusing to take off the nonsuit.
The several assignments are overruled, and the appeal is dismissed.
F. P Schoonmaker, City Solicitor, for appellant. -- It is the primary duty of property owners to keep the sidewalk in a safe condition: Lohr v. Phillipsburg Borough, 156 Pa. 246; McLaughlin v. Kelley, 230 Pa. 251; Duncan v. Philadelphia, 173 Pa. 550; Pittsburgh, for use of Flanagan, v. Fay, 8 Pa. Superior Ct. 269; Mintzer v. Greenough & Hogg, Trustees, 192 Pa. 137.
The terms of the ordinance relating to repair of sidewalks are not such as to preclude the city from recovering in an action over against the property owner: Ashley v. Lehigh & Wilkes-Barre Coal Co., 232 Pa. 425.
J. E. Mullin, with him Charles H. English, John P. Melvin and F. D. Gallup, for appellees. -- The ordinance does not purport to impose upon the property owner any duty to construct or repair sidewalks until after he has been notified by the city to do so: Commonwealth v. Thomas, 248 Pa. 256; In re Road in Borough of Phoenixville, 109 Pa. 49.
Before MESTREZAT, POTTER, MOSCHZISKER, FRAZER and WALLING, JJ.
Clara Lockwood sued the City of Bradford to recover damages for personal injuries suffered through a fall on a defective sidewalk; she secured a verdict, which was followed by judgment in her favor; the city paid the amount of the award, and brought this action against the present defendants, alleging they owned the property in front of which the accident happened, and had negligently permitted the sidewalk to get out of repair; a nonsuit was entered, which the court below refused to remove, and the plaintiff has appealed.
John Barry devised the premises in question to his wife, Ellen Barry, for life, and directed that, upon her death, it be divided among his children; the testator's executors, his widow and his children are all named as defendants in the present action. The City of Bradford served due and proper notice on Ellen Barry, and all but one of the other defendants, to come in and defend Mrs. Lockwood's prior suit. At the trial of the present case, the city introduced an ordinance passed in 1890 providing, inter alia, that sidewalks should be constructed on both sides of every street, and that lot owners are "required to repair and put in good order any sidewalk . . ., within twenty-four hours after notice shall be given them or their agents . . . that such repairs are needed." The plaintiff's declaration avers that, under the laws of Pennsylvania, the City of Bradford had "power and authority to make, lay out and construct . . . sidewalks," and, in effect, that it had constructed the one involved in this case. No notice to repair was given any of the defendants, and none of them occupied the property to which this sidewalk belonged; moreover, Ellen Barry was the only one of the defendants who was even entitled to present possession of the premises, and there is nothing to indicate that she had either actual or constructive notice of the defect complained of.
In a suit of this character, by a city against a property owner it is necessary to show not only the prior recovery against the former, and payment by it to the injured person of the damages there determined, but also circumstances from which it can be found that, before the date of the accident, the defendant had either actual or...
To continue reading
Request your trial