City of New Castle v. Kurtz
| Decision Date | 31 December 1904 |
| Docket Number | 157 |
| Parties | New Castle, Appellant, v. Kurtz |
| Court | Pennsylvania Supreme Court |
Argued October 18, 1904
Appeal, No. 157, Oct. T., 1904, by plaintiff, from judgment of C.P. Lawrence Co., March T., 1902, No. 74, on verdict for defendant in case of City of New Castle v. Julia Maria Kurtz and Mary E. Clark et al. Affirmed.
Trespass to recover the amount of a verdict rendered against plaintiff in an action for personal injuries. Before WALLACE, P.J.
The facts are stated in the opinion of the Supreme Court.
Verdict for defendants by instruction of the court. Judgment was entered on the verdict.
Error assigned was in directing a verdict for defendants.
The learned trial judge was not guilty of error in giving binding instructions for the appellees and this judgment is affirmed.
James A. Gardner, city solicitor, with him Robert K. Aiken, for appellant. -- The primary duty of keeping the sidewalk in repair is upon the abutting property owner: Lohr v Philipsburg Boro., 156 Pa. 246; Duncan v Philadelphia, 173 Pa. 550; Pittsburg v. Fay, 8 Pa. Superior Ct. 269; Pittsburg v. Daly, 5 Pa. Superior Ct. 528; Mintzer v. Greenough, 192 Pa. 137; Dutton v. Lansdowne Boro., 198 Pa. 563.
Where a municipality has been sued and paid a judgment for injuries sustained either by a defective sidewalk, or by reason of a nuisance caused or maintained by the property owner, recovery over can be had by the municipality against the property owner, and this without any previous notice to the property owner of the existence of the nuisance, or to remove or abate the same, or remedy the defect, as he must know it or as he is presumed to know it: Brookville Boro. v. Arthurs, 130 Pa. 501; s.c. 152 Pa. 334; Chester v. Bank, 9 Pa. Superior Ct. 517; Minzter v. Greenough, 192 Pa. 137; Dutton v. Lansdowne Boro., 198 Pa. 563; Reading v. Reiner, 167 Pa. 41; Brown v. White, 202 Pa. 297; Kirchner v. Smith, 207 Pa. 431; Dickson v. Hollister, 123 Pa. 421; Gates v. Penna, R.R. Co., 150 Pa. 50; Philadelphia Co. v. Traction Co., 165 Pa. 456; Leahan v. Cochran, 178 Mass. 566 (60 N.E. Repr. 382); Lowell v. Short, 58 Mass. 275; West Boylston v. Mason, 102 Mass. 341; Westfield v. Mayo, 122 Mass. 100; Chicago v. Robbins, 67 U.S. 418; 2 Dillon, Munc. Corp., secs. 1032, 1033, 1034, 1035.
It is not necessary to give the author of a nuisance, or to those whose wilful or negligent act caused the nuisance, a notice of the existence thereof. The nuisance in this case was occasioned by the construction of the conductors, without any provision being made to carry the water across or under the sidewalk and is a continual nuisance of which the defendants had notice: Gates v. Penna. R.R. Co., 150 Pa. 50; Fowler v. Jersey Shore Boro., 17 Pa.Super. 366; Reading v. Reiner, 167 Pa. 41.
The casting of the water from the roofs of the buildings, through a large conductor, out upon the sidewalk, there to freeze in a ridge of ice, without making any provision to carry the same away, was clearly a nuisance: Brown v. White, 202 Pa. 297; Reedy v. St. Louis Brewing Assn., 53 L.R.A. 805.
The landowner is not relieved from liability when he leases his premises having a nuisance thereon, and, therefore, the defendants were liable; and this is the case in some instances, when the tenant might also be liable: Reading v. Reiner, 167 Pa. 41; Knauss v. Brua, 107 Pa. 85; Fow v. Roberts, 108 Pa. 489; Wunder v. McLean, 134 Pa. 334; Brown v. White, 202 Pa. 297; Kirchner v. Smith, 207 Pa. 431; Lewin v. Pauli, 19 Pa.Super. 447; Reedy v. St. Louis Brewing Assn., 53 L.R.A. Brewing Assn., 53 L.R.A. 805; 2 Shear. & Red. Neg., sec. 709.
S. W. Dana, with him D. B. Kurtz, Aaron L. Hazen, Oscar L. Jackson and Richard F. Dana, for appellees. -- There was no negligence on the part of defendants for which Dean could have recovered against them and consequently the city can have no recourse over upon them: Village of Port Jervis v. First Nat. Bank, 96 N.Y. 550; Chicago v. Robbins, 67 U.S. 418; City of Brooklyn v. Brooklyn City R.R. Co., 47 N.Y. 475, 486; Inhabitants of Lowell v. Boston, etc., R.R. Co., 40 Mass. 24, 34; City of Rochester v. Campbell, 123 N.Y. 405 (25 N.E. Repr. 937); Moore v. Gadsden, 93 N.Y. 12.
In this case, the owners being out of possession, the premises being in the possession of their respective tenants, and the landlords being under no obligation by contract to keep the sidewalk in repair, the owners would not be liable to persons who might be injured by defects arising in the sidewalk for want of repairs while so in possession of the tenants: Bears v. Ambler, 9 Pa. 193; Early v. Ashworth, 15 W.N.C. 142; Towt v. Philadelphia, 173 Pa. 314; Grier v. Sampson, 27 Pa. 183; Lohr v. Philipsburg Boro., 156 Pa. 246; Duncan v. Philadelphia, 173 Pa. 550; Mintzer v. Greenough, 192 Pa. 137; Pittsburg v. Fay, 8 Pa. Superior Ct. 269; Pittsburg v. Daly, 5 Pa.Super. 528.
Before MITCHELL, C.J., DEAN, FELL, BROWN, MESTREZAT, POTTER and THOMPSON, JJ.
This was an action by the appellant to recover from the appellees the amount of a verdict that it was by suit compelled to pay to a person who had been injured by a fall caused by a ridge of ice formed in front of and upon the pavement of the properties owned by the appellees and occupied by tenants. The liability of the appellant in that action sprang from the actual notice to it, of the dangerous condition of the ice upon the pavement and after such notice its neglect to remove it. The proof there was that its street commissioner had express notice of the ridge of ice that caused the accident and its dangerous character. Having such notice and having failed to perform its duty and having been mulcted in damages for such failure of duty, appellant now seeks to recover the amount of such damages from appellees, who had no notice or knowledge of the condition of the ice on the pavement and whose properties were in the occupancy of tenants.
The principle underlying the right to be reimbursed for damages paid by a municipality in cases of accident is that the owner or occupier of the property, as the case may be, is primarily liable to the person injured. The right of subrogation springs from that liability. The primary liability in that case was upon the appellant. It assumed the duty of removing the ice. By its ordinance it required owners, tenants or occupiers of properties to remove the ice in front of the same before ten o'clock of the next day after its accumulation and failing to do so to be liable to a fine, and in case the owner or occupier did not remove when so required, it undertook to do so. The appellant having undertaken that duty had express notice of the condition of the ice and the necessity for its removal. Thus its negligence arose directly from its failure to perform it. It now practically seeks to have a right of subrogation for the repayment of the damages which were the direct consequence of its own negligence. It is an attempt therefore to make a wrong and not a right, the basis of such subrogation.
In Smith's Public Corporations, volume 2, section 1305, it is said:
He there cites numerous authorities to sustain the above.
The failure of the appellant to remove the ice ridge in question with notice of its dangerous condition or to give notice to the tenants to remove it promptly, or in case of their failure, to do so at their expense, negatives an equal liability basis upon which to build a right in equity for subrogation, against the appellees, the owners of the property, not in occupancy, and without the...
To continue reading
Request your trial