Koerth v. Bor. Of Turtle Creek

• Citation: 355 Pa. 121,49 A.2d 398
• Parties: KOERTH v. BOROUGH OF TURTLE CREEK et al.
• Decision Date: 08 November 1946
• Court: United States State Supreme Court of Pennsylvania

355 Pa. 121
49 A.2d 398

KOERTH
v.
BOROUGH OF TURTLE CREEK et al.

Supreme Court of Pennsylvania.

Nov. 8, 1946.

Appeals No. 136, March term, 1946, and No. 24, March term, 1947, from Judgments of Court of Common Pleas, Allegheny County, No. 3251, October term, 1945; Thomas M. Marshall, Judge.

Trespass for personal injuries by Edith Koerth against the Borough of Turtle Creek, a municipal corporation. Turtle Creek Land & Improvement Company, a corporation, was brought in as additional defendant. Judgment and verdict for the plaintiff for $4,500 against the defendant with liability over against the additional defendant, and the defendant and the additional defendant appeal.

Reversed and judgment entered for the defendant and the additional defendant.

49 A.2d 399

Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, STEARNE, and JONES, JJ.

Robert D. Dalzell, John R. Bredin, Bruce R. Martin, and Dalzell, McFall, Pringle & Bredin, all of Pittsburgh, for appellant Borough of Turtle Creek.

Charles A. Fagan, Jr., of Pittsburgh, for appellant Turtle Creek Land & Improvement Co.

James P. McArdle and Edward Pearlman, both of Pittsburgh, for appellee.

HORACE STERN, Justice.

Plaintiff, while walking one night in February, 1945, on what she characterizes as a ‘sidewalk’ of Mercer Street in the Borough of Turtle Creek, stepped into a hole and suffered injuries for which she obtained a verdict against the Borough, with recovery by the latter in turn against the corporate abutting property owner which had been brought in as additional defendant. But, unfortunately for plaintiff, she failed to establish any duty owed to her by either the Borough or the property owner and because of that fundamental defect in her action the judgments must be reversed.

The Borough of Turtle Creek paved and curbed the cartway of Mercer Street in 1929, but neither then nor at any subsequent time did it make any provision for laying out, grading or paving sidewalks. At various times the owners of residences or other buildings abutting on the street voluntarily installed and cemented walks in the fronts of their properties, but, save in a few instances, this was not done by the owners of vacant lots. Plaintiff, proceeding in semidarkness along a walk thus paved, came to the unbuilt-upon property of the additional defendant, Turtle Creek Land and Improvement Company; here the paving abruptly stopped and there was no continuing pathway of any kind. As her foot crossed the property-line it descended into a hole which extended for a distance of about a foot and a half to two feet from the curb to a large solid rock which protruded out from the deep interior of the lot to within that distance of the cartway. This so-called ‘hole’ was in reality a depression of about eight to ten inches in the level of the property below that of the sidewalk on the property adjoining; if not part of the natural contour of the ground it had at least been in existence for a great number of years.

Assuming, for present purposes, that plaintiff was not guilty of contributory negligence, the vital question in the case is whether the Borough was legally responsible for the condition of the place where she fell. It is, of...