Hepburn v. City of Philadelphia

• Decision Date: 23 May 1892
• Docket Number: 294
• Citation: 149 Pa. 335,24 A. 279
• Parties: Hepburn v. City of Philadelphia, Appellant
• Court: Pennsylvania Supreme Court

24 A. 279

149 Pa. 335

Hepburn v. City of Philadelphia, Appellant

No. 294

Supreme Court of Pennsylvania

May 23, 1892

Argued January 6, 1892

Appeal, No. 294, Jan. T., 1891, by defendant, from judgment of C.P. No. 3, Phila. Co., March T., 1889, No. 96, on verdict for plaintiff, Frances E. Hepburn.

Trespass for personal injuries.

On the trial before FINLETTER, P.J., the following facts appeared The plaintiff on the night of Sept. 2, 1888, walked across Arch street toward a car which she wished to board, but before reaching it fell into a ditch and was injured. Other facts appear by the opinion of the Supreme Court. The letter of acceptance of the bid of the contractor, Kane, dated Aug 1, 1888, and referred to in the opinion, was signed by the chief of bureau, and stated that "the contract for ditching, refilling and repaving, in accordance with the specifications, . . . was awarded you this day."

The court below charged in part as follows:

"The city is not responsible when the street, or the locality of the cause of accident is in charge of a contractor for a public or private purpose.

"If the city had entered into a contract for the digging of this trench, and the contractor had entered upon the work, the city was not responsible for anything which was done to the street, or for anything which occurred in consequence thereof, or in consequence of any neglect, either in doing the work, or in not giving notice by a light or otherwise of the dangerous condition of the street.

"Under such circumstances, the contractor was liable, and he alone.

["It is for you to determine whether there was such a contractor, and whether or not he had completed his work and the city had resumed its control and authority over the street.]

"The mere completion of the work by the contractor is not enough to impose liability upon the city. There must be, in addition, an acceptance of the work by the city, and a discharge of the contractor from possession of the locality of the work, and from liability for its condition and a resumption of control by the city. You will, therefore, carefully consider the evidence in reference to the contract, and the work to be done under it.

* * *

["If, however, you are satisfied from the evidence that the city had resumed control, then the question arises, Were its agents, the authorities, negligent? Their negligence is the negligence of the defendant.]

"Negligence is a neglect, or violation of duty, and where no duty is imposed, no negligence can arise.

"It is the duty of the city government to keep the streets, the roadbeds and the sidewalks in repair and free from dangerous obstructions, depressions, or holes.

"Any obstruction or hole, or want of repair which is dangerous, is evidence of negligence on the part of the city, and it becomes responsible for all injuries which may arise therefrom under certain circumstances. It is not responsible, however, unless its agents, those who have charge of the streets, have notice of the cause of injury.

"This notice may be direct, that is, to the proper agent, by written or verbal information of the dangerous condition of the street. It may also be indirect or presumptive notice, such as existence for some time, sufficient to give knowledge to those in charge, to give knowledge of its existence to the proper authorities. Notice to any of the agents of the city who would be likely to give those in charge of the streets notice, and also knowledge of the fact by such persons is evidence. In this case, notice was given to a police officer. This is not evidence of notice to the proper agents, but it is evidence that the police officer knew of the existence of the hole, or obstruction, or depression. It is also in evidence that this ditch was dug for the purpose of laying gas pipe, and that work was completed or finished on Saturday preceding the accident -- Sunday. [[From all these matters the jury are called upon to decide whether or not the proper authorities should have known of the condition of the street.]

"If the jury find from this evidence that the proper agents of the city should have had this knowledge, then they had sufficient notice, and should have guarded this break in the street, or should have had a light or other means to give warning of its existence placed there, and if this was not done, the defendant, the city, was negligent.]

"The importance which the jury should give to witnesses will always depend upon the intelligence they evince, their means of observation, and a desire to tell what they know, or think they know, without prejudice or passion.

"In all cases you may expect conflicting, or apparently conflicting testimony. It is the duty of the jury to ascertain the truth from the reliable testimony in the cause.

"There is a very decided difference of opinion between the witnesses as to the condition of the locality of the accident and the manner in which it occurred, and the appearance of the plaintiff at the time.

["So far as the liability of the defendant is concerned, it is of no importance, no consequence, where the exact truth lies in this conflict of evidence.]

["The city is liable, no matter what the exact condition of the street was, if it were out of repair, and that want of repair caused the injury.]

"The exact condition of the trench is important, so far as it may have effected the extent of the injuries, and their subsequent consequences. The injuries themselves and their consequences are likely to depend upon the depth and width of the trench and its conditions."

Errors assigned were (1-6) the portions of the charge as above in brackets, quoting them; (7, 8) the refusal of defendant's points, quoted in the opinion; (9) the entry of judgment for the plaintiff.

Judgment affirmed.

Abraham L. Beitler, with him Leonard Finletter and Charles F. Warwick, city solicitor, for appellant.

F. Carroll Brewster, with him Bradbury Bedell, for appellee. -- The city had not made any contract at the time of the accident: Art. XIV, act of June 1, 1885; Dillon on Mun. Corp., 4th ed. §§ 89, 443 and 449; Angell & Ames on Corp., 11th ed. § 253; Bank v. Dandridge, 12 Wheat. 64; Head v. Providence Ins. Co., 2 Cranch, 127; British Ass. Co. v. Browne, 12 C.B. 723.

Before PAXSON, C.J., STERRETT, GREEN, WILLIAMS, McCOLLUM, MITCHELL and HEYDRICK, JJ.

OPINION

MR. JUSTICE STERR...