Smith v. Borough of East Mauch Chunk

Opinion by Willard, J., Persons using the streets and sidewalks of a borough at the present day are entitled to have them kept in such order and repair as to be safely used, and it is the duty of the proper officials of a borough to see that this duty to the public is performed so that persons may travel the streets without danger to life or limb. That this duty in many cases is unperformed is apparent from the number of cases in our courts for damages for injuries caused by the neglect of those entrusted by the people with the care and supervision of streets and sidewalks. In the case before us, the plaintiff was injured on Centre street in the borough of East Maueh Chunk while walking upon a sidewalk where she had a right to be. As to the condition of the sidewalk at the point where the plaintiff was injured there was evidence that the stringers were decayed. In the language of one witness, they “ were all rotted down to the ground where the planks were loose.” There was other evidence that the planks were loose and in bad condition. The plaintiff testified that by reason of the rolling of one of the loose planks she was thrown over against a tree and sustained injuries fully described by her in her testimony, and by the physician who dressed her wound and afterwards attended her. There was sufficient evidence of the unsafe condition of the sidewalk to carry that question to the jury. There was also evidence that prior to the injury the appellant had actual notice of the condition of the sidewalk. Notice to the chief burgess is sufficient: Fee v. Columbus Borough, 168 Pa. 382. In his testimony the burgess says, “ I knew the sidewalk was not as good as it ought to be.” From this evidence of the burgess himself in connection with the other evidence in the case the jury had the right to conclude that it was [508] not safe and that he knew it. There is also evidence that the burgess lived within two hundred and ten feet of this sidewalk and frequently passed over it; also, that immediately after the accident, in a conversation with the plaintiff, the burgess used language indicating previous'knowledge on his part of the condition of the sidewalk. Mrs. Smith testified, “ I said, see here what I did on your old pavement. He said, whose pavement was it ? I said, I don’t know, I will find out. And he said, it wasn’t his pavement, he couldn’t help it. They were told often enough.” Although Mr. Beighe (the burgess) denies this in his testimony, Mrs. Smith was fully corroborated by another witiress. This testimony, its meaning and effect, was for -the jury on the question of actual notice. The accident happened on October 6, 1892. Matilda Eck; a witness,' testified that she moved to East Mauch Chunk in June 1891. According to her testimony, the sidewalk in front of the Kemmerer lot was then out of order, the planks loose, and that it so continued to the time of the accident. Her testimony, together with that of Luther LeBar and other witnesses, compelled the court to submit the question of constructive notice of the condition of the sidewalk to the jury. The opinion of the witness, Swartz, as to board sidewalks, elicited on his cross-examination by the plaintiff’s counsel, as explained by the witness himself, was more favorable to the defendant than plaintiff, and was in fact but a reiteration of the same opinion previously brought out on the cross-examination of the same witness by defendant’s counsel when on the witness stand for the plaintiff. The charge of the court on the elements of 'damage to be considered by the jury in arriving at their verdict, was in familiar language sanctioned as a correct rule by our Supreme Court in repeated decisions. The amount of the verdict and the conduct of the juror assigned for error in the fourth and fifth specifications were proper questions for review in the court below on the rule to show cause why a new trial should not be granted. Thirty-five pages of testimony were taken and submitted to the court on the hearing. The rule was discharged by the trial judge, we presume, for good and sufficient reasons, and we do not propose to disturb the verdict. The specifications of error are all overruled and the judgment affirmed.