Lohr v. Borough of Philipsburg

• Decision Date: 19 July 1893
• Docket Number: 147
• Citation: Lohr v. Borough of Philipsburg, 27 A. 133, 156 Pa. 246 (Pa. 1893)
• Parties: Lohr v. Philipsburg Borough, Appellant
• Court: Pennsylvania Supreme Court

27 A. 133

156 Pa. 246

Lohr v. Philipsburg Borough, Appellant

No. 147

Supreme Court of Pennsylvania

July 19, 1893

Argued April 17, 1893

Appeal, No. 147, Jan. T., 1893, by defendant, from judgment of C.P. Centre Co., August T., 1890, No. 182, on verdict for plaintiff, Isabella Lohr.

Trespass for injuries caused by defective sidewalk.

At the trial, before FURST, P.J., it appeared that, on April 29 1890, plaintiff slipped on a defective sidewalk in the borough of Philipsburg, and injured herself.The sidewalk was made of hemlock boards, and had been down for about seven years.There was evidence that such a board walk would rot out in about four or five years.

Dr. S F. Lytle, plaintiff's witness, under objection and exception, testified in effect that Warfel, who was elected chief burgess in 1890, said he told the chief of police to notify the owner of the property as to the condition of her pavement in the fall of 1889.[1]

The court charged in part as follows:

"According to the evidence on the part of the defendant, they did not know of the unsafe condition of the pavement.They did, however, know that this pavement was built entirely of hemlock.This pavement was known to Mr. Doyle and Mr. Funk, whose duty it was, the former being president of the street committee and the latter chief of police, to examine into the condition of the pavements of the borough.They also knew, are presumed to know -- in fact one of the witnesses, I think Mr. Doyle, testified that a pavement made of this kind of wood will last ordinarily from four to six years; that after the expiration of that time a pavement, when it is laid upon the ground as this was, partly in the ground, becomes rotten and it becomes necessary either to rebuild it, or repair it Now, knowing the character of this pavement, knowing the fact that it was subject to decay, and, after the lapse of a number of years, it would decay and would have to be repaired, the question, and the important question, in this case, is, did the authorities in this case use reasonable diligence to discover the defects in the pavement?Now, in passing upon that inquiry, I perhaps may differ a little from counsel, both on the part of the plaintiff and on the part of the defendant.I think I do not differ from them in principle, but it was not necessary, in the judgment of the court, for the town council to take up that pavement to discover its defects-that is, the law does not require them to go to that extreme.The law requires of them reasonable diligence, and that only.They were to exercise such judgment as a prudent man would ordinarily exercise under like circumstances.Now did they, in the examination of this pavement, exercise that proper care and diligence.If they did, then the defendant is not liable, even if the pavement was out of repair, because they do not guarantee or warrant the safety of the people.They are to keep the pavement in reasonable repair, so that the public, passing and repassing upon the pavement and using ordinary care, may do so with safety.Whilst they were not required to tear up this pavement to discover its defects, the judgment of the court is, it having been shown that it was an old pavement, -- if you believe the testimony on the part of the plaintiff that after a certain period of time pavements of that character become defective, -- it was their duty to exercise proper supervision or make proper examination of this pavement by going upon and testing it to discover, if by the eye they could do so, whether the pavement was defective or not.This could have been discovered, according to the evidence, by the fact that the nails were drawn out of the plank, owing to its rotten condition."[5]

Verdict and judgment for plaintiff.Defendant appealed.

Errors assigned were (1) ruling on evidence, (5) instruction; quoting instruction, bill of exception and evidence.

Judgment reversed, and venire de novo awarded.

John G. Love, Daniel S. Keller, William Bryson and Harry Keller with him, for appellant, cited: Zimmerman v. Township of Conemaugh,2 Cent. R. 361; s.c., 5 A. 45;Kieffer v. Hummelstown Borough, 151 Pa. 304.

John H. Orvis, of Orvis, Bower & Orvis, Spangler & Hewes with him, for appellee, cited: Baker v. Allegheny Valley R.R.,95 Pa. 211;City v. Smith,23 W.N. 242;City v. Downs,126 Pa. 622;Vanderslice v. City,103 Pa. 102;Kibele v. City,105 Pa. 41;Rapho v. Moore, 68 Pa. 404.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. JUSTICE MITCHELL:

The first assignment of error we are obliged to sustain.The general effect of Lytle's testimony was that Warfel said he had told the chief of police to notify Mrs. Long about her pavement in the fall of 1889, and yet it is conceded that Warfel was not elected burgess of defendant until 1890.Lytle did not attempt to explain this discrepancy, and the learned judge should either have struck out the testimony as requested, or at least...