Fritsch v. City of Allegheny

• Decision Date: 20 October 1879
• Citation: 91 Pa. 226
• Parties: Fritsch and Wife <I>versus</I> City of Allegheny.
• Court: Pennsylvania Supreme Court

Page 226

91 Pa. 226

Fritsch and Wife versus City of Allegheny.

Supreme Court of Pennsylvania.

October 8, 1879.

October 20, 1879.

October 8th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 208.

Frederick Luty, for plaintiff in error.—The facts proven by the plaintiffs should have been submitted to the jury; and the court erred in entering the nonsuit. It cannot be determined by the court, as a matter of law, that a carcass lying on a public highway for a specified time, was or was not a nuisance: Johnson v. The Town of Haverhill, 35 N. H. 74. If the carcass remained on the public street, used for travel in the city of Allegheny, from one morning until the next morning, it was a nuisance per se, and the city was bound to know of its existence and continuance, and is responsible for any injury it caused — or resulting from the maintenance or neglect to remove the nuisance: Norristown v. Moyer, 17 P. F. Smith 355. It was not necessary that notice should have been given of the existence of the nuisance, it was the duty of the city to have known and removed it the first day of its existence: Norristown v. Moyer, supra; Winn and Wife v. City of Lowell, 1 Allen 179.

W. B. Rodgers, City Solicitor, for the city.—When the obstruction is the act of a third party, the city is not liable until after notice, actual or constructive, and the expiration of a reasonable time thereafter for its removal. There was no actual notice in this case. The street commissioner is the officer who has the general charge of streets in all cities. There was no notice to him. It is true that notice was left at the fallmaster's house, with his son, about 6 o'clock on the evening of the 12th. The fallmaster is an officer whose duty it is to remove carcasses prejudicial to the public health. The owner has twelve hours to remove the carcass; on his failure to do so, then the fallmaster removes the same within twelve hours thereafter, at the expense of the owner, or if unfit for use, at the expense of the city, upon the order of the health officer. The accident happened before the expiration of twenty-four hours from the time the horse fell. The horse had not laid on the street a sufficient length of time to charge the city with constructive notice, and make it in default for not removing it. To charge the city with constructive notice the obstruction must have been of such long duration as to be generally observable, and sufficient time allowed for its removal: McLaughlin v. Corry, 27 P. F. Smith 113; Harrison et al. v. Collins, 5 W. N. C. 467; Manchester v. Hartford, 30 Conn. 118; McGinty v. New York, 5 Duer 674.

In Norristown v. Moyer, supra, the obstruction had been erected for seven years. The case of Winn v. Lowell, supra, was under the Massachusetts statute, where the town is bound to remedy a defect existing for twenty-four hours.

Mr. Justice MERCUR delivered the opinion of the court, October 20th 1879.

In this case the court ordered judgment of nonsuit against the plaintiffs, and refused to take it off. This is assigned for error.

A municipal corporation is bound to keep the streets, roads and bridges, over which it has jurisdiction, in repair: Dean v. New Milford Township, 5 W. & S. 545; McLaughlin v. City of Corry, 27 P. F. Smith 109. A road or street may be put out of repair by the deposit of obstructions thereon which impede and hinder travel or make it dangerous, or by partial destruction of the roadbed itself, producing the like effect. To repair means to replace, to restore to sound or good condition after injury or partial destruction. Therefore, to repair a road or street, to restore it to its former condition and give it the essential properties of a suitable public highway, requires the removal of all obstacles cast upon it, which impede its free passage: Pittsburgh and Birmingham Passenger Railway Co. v. Pittsburgh, 30 P. F. Smith 72.

An action will lie against the municipality to recover damages for an injury sustained by reason of the negligence of its officials to keep its roads and streets in proper repair: Dean v. New Milford Township, supra; Allentown v. Kramer, 23 P. F. Smith 406; Township of Newlin v. Davis, 27 Id. 317. What is and what is not negligence in a particular case is generally a question for the jury and not for the court. If there be no doubt as to the acts committed, yet if there...