Dutton v. Borough of Lansdowne

Opinion by Smith, J., The leading objection of the appellant is to the joinder of the abutting landowner and the borough as defendants in the action. It is very ably argued that they are not joint wrongdoers ; that in law their relation to the duty arising in the premises is dissimilar and unequal — that of the landowner being primary and absolute, while that of the borough is secondary and supplemental. It is contended, therefore, that the breach of duty is materially different, that of the landowner being a failure to maintain the sidewalk in safe condition, while that of the borough is the failure to compel the owner to do this. Con [209] sidered in their relation to each other, this distinction is well taken, and in an action by one against the other would he of controlling importance. But so far as third persons are concerned, it is not to be doubted that either is primarily liable for neglecting to keep the public sidewalk in good condition. This duty is imposed by law on the landowner and the municipality alike, and it has often been held that either may be sued in the first instance, for failure to perform it, without reference to the primary and secondary liability existing between them. When neither performs this duty, there is concurrent negligence, for which they are equally liable to third persons. Their relative rights and duties concern only themselves and can be enforced only in an action by one against the other. While equally liable to third persons for the same cause, they may not be equally liable one to the other. Liability grows out of neglect of duty, and duty may be subordinate to power. The power of the municipality over the public streets and walks is paramount to that of the abutting property owner. In any conflict between them theTatter must yield, and liability may vary accordingly. But this relative power and relative liability concern only the municipality and the property owner, and neither is material in an action for neglect of the common duty to the public.' Neglect of this duty is the ground of liability on the part of both the municipality and the landowner, and no good reason appears why they may not be joined in an action for this tort. Such joinder does not affect their relative rights, which may be enforced without reference to their common duty and liability to others. While the precise question here raised does not seem to have been discussed by our Supreme Court, our conclusion is in harmony with the principle of decision in many of the eases. Here the maintenance of the walk in safe condition was a common duty, and a failure to perform it was a common default. The cause of action is single and based on the negligence of both municipality and landowner. Both participated in the nonfeasance and they are equally and jointly liable for the consequences: Klauder v. McGrath, 85 Pa. 128. The essential feature of the latter ease, and upon which it turned, was the neglect of both parties to maintain a party wall. In the case [210] before us, the essential feature is the neglect to maintain a sidewalk. In both the controlling principle is necessarily the same. Further analogy is found in the case of Durkin v. Coal Co., 171 Pa. 193. In that case the corporation, a mine foreman, and an assistant superintendent, were joined as defendants, and charged with dissimilar acts of negligence. The plaintiff sued for damages for his son’s death, caused by the falling in of the mine, and a recovery was had in the court below against the corporation and the mine foreman. It was argued in the appellate court that there was a misjoinder for the reason that parties liable only at common law shall not be joined with parties liable under a statute. But this was ignored by the Supreme Court and judgment was reversed as to one defendant and affirmed as to the other. A similar result was reached by the jury in the present case. The view here adopted is entirely consistent with the doctrine of many cases: Schuylkill. Co. v. Richards, 57 Pa. 143; Leidig v. Bucher, 74 Pa. 65; Laverty v. Vanardsdale, 65 Pa. 507; Huddleston v. Borough, 111 Pa. 110; Brookville v. Arthurs, 130 Pa. 501; Gates v. Railroad Co., 150 Pa. 50; and seems to have been affirmatively announced in Borough of Carlisle v. Brisbane, 113 Pa. 544, and Koelsch v. Railroad Co., 152 Pa. 355. The court refused to give binding instruction in favor of the landowner, but left it to the jury to pass upon his liability under the established rules of evidence. We cannot hold that the jury should, as a matter of fact, have found a verdict against him and relieve the borough. That was for the jury under the evidence. The fifth, sixth, twelfth and seventeenth specifications are overruled. The second, third, seventh, eighth, eleventh and thirteenth specifications deal with the questions of negligence and of notice to the borough. The testimony on these points was abundant to call for their submission to the jury. Notice of defects in the sidewalk at and about the place where the plaintiff was injured was both direct and inferential. Testimony was introduced showing that written notices of this were given to the highway commissioners, whose duty it was to report the condition of the streets to the chairman of the highway committee, and that in pursuance of this he made a written report to the highway committee of the bad condition of the walk, about two months before the plaintiff’s injury. The testimony also shows [211] that tbe borough acted on these notices and undertook to repair the walk but as it was intended soon to replace the pavement with asphaltum the work of repair was of a temporary nature. The abutting lot owner was not called upon to make the repairs, but the borough, without notifying him, undertook the performance of this duty. Having thus taken charge of the work the borough was in duty bound to make such examinations and repairs as the safety of the public required, and whether it did so or not was for the jury to decide. In view of the evidence, and of the admitted fact that the borough engaged in repairing this walk, it would seem idle to argue that the borough had no notice of the defects or other knowledge of their existence. The principles governing this branch of the case are stated and applied in Township v. Moore, 68 Pa. 404, Nanticoke v. Warne, 106 Pa. 373, and Pee v. Borough, 168 Pa. 382. The specifications relating to the relative liability of the borough and the lot owner have been sufficiently noticed. The subject is not directly involved in this issue and must be left for future determination if it is raised by an issue between the proper parties. The remaining matters presented for our consideration are without merit. Looking at them in the light of the whole evidence, it does not appear that they did the appellant any harm, and, therefore, they are not ground for reversal. The assignment of errors is overruled and the judgment is affirmed.