McNerney v. City of Reading

Decision Date03 October 1892
Docket Number211
Citation25 A. 57,150 Pa. 611
PartiesMcNerney v. Reading City, Appellant
CourtPennsylvania Supreme Court

Argued March 2, 1892

Appeal, No. 211, Jan. T., 1892, by defendant, the city of Reading, from judgment of C.P. Berks Co., Dec. T., 1890, No 24, on verdict for plaintiff, Henry F. McNerney.

Trespass to recover damages for injuries sustained by falling into an unguarded area-way in a pavement on a public street.

The material facts, as they appeared at the trial before ERMENTROUT, P.J., are stated in the opinion of the Supreme Court. The area- or cellar-way there described was protected at the sides by a sloping iron rail two feet in height at the building line and eight inches high at the highest point where it was fastened to the pavement. Plaintiff, between ten and eleven o'clock at night, caught his foot in the iron rail and was tripped and thrown into the cellar-way sustaining injuries.

A witness for defendant was asked, at the trial: "Q. Is it usual and customary in this town to have underground alleyways?" Objected to.

Mr. Snyder: The defendant proposes to show that it is usual and customary in the city of Reading to have underground entrances into houses and that it is necessary for the convenient use and enjoyment of dwelling-houses as they are built in this city; also to show that the house of Mr. Tracy is of that character.

Mr. Stevens: Objected to, because testimony as to what is usual and customary is not relevant to the issue. If the city of Reading is accustomed to allow and maintain unsafe and negligently constructed area-ways on its highways it cannot avail as a matter of defence in a suit against the city by one who has been injured; the offer is generally irrelevant and immaterial.

The Court: As the offer stands now we will sustain this objection. Exception. [1]

Plaintiff then offered in evidence city ordinances of 1888-9, approved Jan. 5, 1889. Objected to as not rebuttal and as irrelevant. Admitted; exception. [2]

Said ordinance, entitled "An ordinance to require openings in pavements to be properly guarded," provides: "Sec. 1. All owners of property which may have an underground alley or open passage-way occupying portion of the sidewalks in this city shall have the same protected or guarded by a covering of wood or other substantial material, or guarded with an iron railing in order to avoid danger likely to arise by reason of such opening being unguarded. Sec. 2. Any owner of such property failing to comply with the provisions of this ordinance shall suffer and pay a penalty of not less than $10, nor more than $20, to be recovered in the name and for the use of the city of Reading. Sec. 3. It shall be the duty of the building inspector to enforce the provisions of this ordinance."

William H. Boyer, one of plaintiff's witnesses, was asked: "Q. Do you remember Thomas Tracy, the proprietor of Harugari Hall saying, 'For goodness sake do not call me as a witness, I have been maintaining a dangerous place for five years,' and did I not then say, 'No, we will call Mr. Boyer and leave you off.'" Objected to as irrelevant. Question allowed; exception. [3]

By Mr. Stevens: "Q. Do you remember that conversation taking place? A. Yes, sir, I remember that. Q. Do you not remember the other? A. I do not remember the other. Q. Do you not remember of saying it was a dangerous place? A. No, sir, I do not remember of saying that."

Warren O. Spencer, one of plaintiff's witnesses, who had examined the place after the accident, was asked: "Q. In your opinion, is or is not the area-way a dangerous place?" Objected to, because it has not been shown that the witness is an expert as regards area-ways or matters of that kind, and that he has no knowledge on this subject. Question allowed and exception. [5]

The witness then said he thought the place very dangerous.

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned were (1-5) rulings on evidence, quoting bills of exceptions and evidence.

The specifications are overruled. Judgment affirmed.

William J. Roorke, Jefferson Snyder with him, for appellant, cited King v. Thompson, 87 Pa. 365.

William Kerper Stevens, for appellee, cited on the question of negligence: Shearman & Redfield on Negligence, par. 360, p. 433; Temperance Hall, etc. v. Giles, 33 N.J.L. 260; Davenport v. Ruckman et al., 37 N.Y. 568; Myer v. Snyder, Brightly, 489; Beatty v. Gilmore, 16 Pa. 463; Fox v. Booth, 1 W.N. 177. On the admission of the city ordinance: Phila. & Reading R.R. v. Ervin, 89 Pa. 76. On the cross-examination of unwilling witness: Bank of Northern Liberties v. Davis, 6 W. & S. 285; Newell v. Homer, 120 Mass. 277. On the expression of an opinion by a witness as to the dangerous character of a place: Beatty v. Gilmore, 16 Pa. 463; Graham v. Pa. Co., 139 Pa. 160.

Before STERRETT, GREEN, WILLIAMS, McCOLLUM and MITCHELL, JJ.

OPINION

MR. McCOLLUM, JUSTICE:

The appellee was severely injured on the night of the 15th of September, 1890, by falling into an open area-way on South Sixth street in the city of Reading. He claims that the injury he received was the result of the city's negligence in the care of its streets, and he brought this action to recover the damages he sustained in consequence of it. The area-way was in front of Harugari Hall in which Thomas Tracy kept a saloon. It was four feet and nine inches in width and extended from the building line into the street five feet and six inches. It was an opening into which persons passing along the sidewalk, or to and from the building in the night-time, might accidentally fall, without any fault on their part. The jury found, on sufficient evidence and under instructions which are not assailed, that this opening was insufficiently guarded, and a dangerous obstruction in the highway and that there was no negligence of the appellee contributing to the accident.

The specifications relate to rulings on offers of testimony. The first alleges error in the rejection of the appellant's offer to show that it was usual and customary, and necessary for the convenient use and enjoyment of dwelling-houses, in the city of Reading, to have underground entrances...

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