Fitzpatrick v. Burgess & Town Council of Borough of Darby
| Decision Date | 28 February 1898 |
| Docket Number | 484 |
| Citation | 184 Pa. 645,39 A. 545 |
| Parties | Francis J. Fitzpatrick and Catharine A., his Wife, Appellants, v. The Burgess and Town Council of the Borough of Darby |
| Court | Pennsylvania Supreme Court |
Argued February 10, 1898
Appeal, No. 484, Jan. T., 1897, by plaintiffs, from judgment of C.P. Delaware Co., Dec. T., 1896, No. 105, on verdict for defendant. Affirmed.
Trespass for personal injuries.
At the trial it appeared that on October 13, 1895, Catharine A Fitzpatrick was injured while walking on a defective sidewalk in the borough of Darby. At the point where the accident occurred a trench had been dug and filled up, and Mrs Fitzpatrick was injured by her foot sinking into the soft clay in the trench.
Other facts appear by the opinion of the Supreme Court.
The court gave binding instructions for the defendant.
Verdict and judgment for defendant. Plaintiffs appealed.
Error assigned was in giving binding instructions for defendant.
Judgment affirmed.
Edward H. Hall, with him George E. Darlington, for appellants. -- It is the duty of a municipality to keep and maintain its sidewalks and pavements in such order and repair as to be safely used, and it is the duty of the proper officials of the borough to see that this duty to the public is performed, so that persons may travel the streets without damage to life or limb, and for negligence in the performance of such duty they are answerable: Smith v. Mauch Chunk, 3 Pa. Superior Ct. 507; Lohr v. Philipsburg, 156 Pa. 249; Burns v. Bradford City, 137 Pa. 367; Gschwend v. Millvale Borough, 159 Pa. 258; Allen v. DuBois Borough, 181 Pa. 187; Crumlich v. Harrisburg, 162 Pa. 624.
Jesse M. Baker, for appellee, was not heard, but cited in his printed brief: Borough of West Chester v. Apple, 35 Pa. 284; Hanson v. Warren Borough, 22 W.N.C. 133; Mattimore v. Erie City, 144 Pa. 14; Hunter v. Wanamaker, 17 W.N.C. 232; McGrew v. Stone, 53 Pa. 436; Morrison v. Davis, 20 Pa. 175; Lohr v. Philipsburg, 165 Pa. 111; Philadelphia v. Smith, 23 W.N.C. 242; Duncan v. City of Phila., 173 Pa. 550; Vanderslice v. Phila., 103 Pa. 102; Eisenbrey v. Phila., 24 W.N.C. 231.
Before GREEN, McCOLLUM, MITCHELL, DEAN and FELL, JJ.
The evidence on this record fails entirely to disclose any negligence on the part of the borough, or any notice to the borough authorities of any danger in the condition of the sidewalk at the place of the accident. The ditch was dug by a plumber, to lay a water pipe to the adjoining property. It was about thirty inches wide and three feet deep. It was filled up immediately when it was made, and the earth was rammed into the trench when it was filled. It was on a public street, and was in constant use for nearly two months before the accident. It was trodden upon every day by all pedestrians passing...
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