Davis v. City of Corry

• Decision Date: 08 May 1893
• Docket Number: 219
• Citation: 26 A. 621,154 Pa. 598
• Parties: Davis, Appellant, v. Corry City
• Court: Pennsylvania Supreme Court

26 A. 621

154 Pa. 598

Davis, Appellant, v. Corry City

No. 219

Supreme Court of Pennsylvania

May 8, 1893

Argued April 26, 1893

Appeal, No. 219, Jan. T., 1893, by plaintiff, Ann Davis, from judgment of C.P. Erie Co., Feb. T., 1891, No. 160, refusing to take off nonsuit.

Assumpsit by widow for death of her husband caused by falling over obstruction on sidewalk.

The facts appear by the opinion of the Supreme Court.

The court, GUNNISON, P.J., entered a compulsory nonsuit and subsequently refused to take it off.

Error assigned was, (1) refusal to take off nonsuit.

S. M Brainerd, Isador Sobel with him, for appellant. -- Where an obstruction is of such long duration as to be generally observable, the city is chargeable with constructive notice McLaughlin v. City of Corry, 77 Pa. 109.

A corporation which is bound to keep its highway in repair and in safe condition, is liable for an injury caused by its neglect to do so, and it is immaterial whether the neglect was willful or otherwise. Where ignorance of the defect is the result of omission of duty, actual knowledge of its existence is not an essential to the fixing of such liability. If the exercise of proper supervision would have led to discovery of the nuisance in time to remove it or to protect the public against it, there is the same liability for an injury caused by the nuisance as if there had been notice or knowledge of it: Born v. Allegheny & Perrysville Plank Road Co., 101 Pa. 334; Norristown v. Moyer, 67 Pa. 355; Erie City v. Schwingle, 22 Pa. 384; R.R. v. McElwee, 67 Pa. 311.

C. L. Baker, C. G. Olmstead and A. B. Osborne with him, for appellee. -- The Ajax Iron Works had a right to use that portion of the sidewalk in front of its premises for the purpose of receiving and delivering its machinery and products, and such right was "not subservient to the rights of the traveling public:" Piollet v. Simmers, 106 Pa. 95.

In the absence of notice, actual or constructive, the city of Corry cannot be charged with the consequences of the wrongdoer's act.

Plaintiff's remedy was against the property owners, and not against the city: Hanson v. Warren Boro., 22 W.N. 133; Mattimore v. Erie City, 144 Pa. 14.

The burden of proof is upon plaintiff, and when plaintiff's witnesses almost unanimously fail to tell how long, whether temporarily or not, what they saw remained, then, as the learned judge below pointed out, this case falls: Bartlett v. Kittery, 68 Me. 358.

Constructive notice is a legal inference from established facts: Koons v. W.U. Tel. Co., 102 Pa. 170.

Before WILLIAMS, McCOLLUM, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. DEAN, JUSTICE

Ann Davis, the plaintiff, is the widow of Humphrey Davis, deceased. The husband was a resident of Corry, a man about sixty years of age, of irreproachable habits, in good health, a shoemaker by trade, industrious and saving. On the evening of the 15th of September, 1890, after dark, about 8 o'clock, he left his home on the north side of the town to attend a meeting of the "Equitable Aid Union" on the south side. His direct route to the place of meeting was on the sidewalk on the west side of Center street. On this street, having a frontage of about fifty feet, was located the manufacturing establishment known as the "Ajax Iron Works." As he passed in front of these works on the sidewalk, he fell over a piece of machinery or casting placed there by the Iron Works, and was so injured that in a few days thereafter he died. His widow brings this suit against the city for damages, averring negligence on part of city in permitting the obstruction of the sidewalk, which caused the death of her husband.

After the jury was sworn and the evidence of the plaintiff had been heard, the learned judge of the court below directed a nonsuit, and having afterwards on motion refused to take it off, the plaintiff took this appeal. The reasons for entering the nonsuit and for refusing to take it off are given as follows:

"It seems to me perfectly clear that this motion should prevail. The burden in a case of this kind is always on the plaintiff to prove such a state of facts as will sustain every element in his case. It is necessary that he should prove first that the act complained of was negligent on the part of the person who committed it. As far as that is concerned, there is ample evidence that the Ajax Iron Works were negligent in the placing of even this particular piece of machinery on the sidewalk, without any warning to passers by that it was there, so that persons going by in the dark would be liable to stumble over it. That alone would be sufficient evidence to justify the jury in finding that the placing of that iron there was negligence.

"But in order to charge the city with the consequences of that negligence of some other person, it is necessary to show that they had either actual or constructive notice of the negligent act of the Ajax Iron Works. Of course there is no testimony to show actual notice. Evidence that would justify the jury in finding that there was constructive notice must be evidence of the existence of the obstruction for a sufficient length of time to charge the public authorities with notice, so that if they did not know it they ought to, in the performance of their duty. I do not mean by that to vary from the ruling which was made upon the offer of evidence, that it would be necessary to charge them with notice of the particular piece that obstructed the sidewalk of the existence of that on the walk for a sufficient length of time to charge them with notice, but it must be evidence of such a similar, continuous, unlawful occupation of the walk as would charge them with notice. Evidence that on every day of the year people going by there saw articles on the walk would not be sufficient...