
    Philadelphia v. Smith.
    The liability of a municipality for damages for injuries caused by defect in the sidewallc is not relieved by the fact that the property owner may also be liable.
    It is the duty of the city of Philadelphia to see that the sidewalks of its streets are kept in safe condition for travel, and the city is answerable in damages to a pedestrian, who, without negligence, has sustained injuries by reason of a defect in a sidewalk, of which the municipal authorities had notice, either express or implied.
    Sterrett, J. — Implied notice is the notice which the city is presumed to have, when an obstruction in the public highway has existed so long that the city should reasonably take notice of and Tepair it.
    The case of West Chester v. Apple, 35 Pa. 284, distinguished.
    
    Jan. 16, 1889.
    Error, No. 27, July T. 1888, to O. P. No. 1, Philadelphia Co. to review a judgment upon a verdict for the plaintiff in an action of trespass, at March T. 1885, No. 73.
    The evidence was to the following effect:
    In February, 1885, the Ellis Estate was, and had been for a long time, the owner of a row of houses on the east side of Nor-wood street, between Montgomery and Columbia avenues, in the Twenty-ninth "Ward of the city of Philadelphia. Sometime late in the year 1884 the estate made connections between the houses in the row and the sewer in the street. The doing of this work necessitated the digging of trenches across the sidewalks and into the cartway. After the drains were laid, the trenches were filled up and the bricks laid. During the wet weather and the frosts of winter, the loosely-packed earth sank, and, by February, 1885, there was a depression over where each trench had been, deepest between the curb and the step-line, where the ordinary travel had beaten down the earth.
    A little after 4 p. m. on February 13, 1885, the plaintiff below, then a minor and unmarried, was going along Norwood street toward Columbia avenue. It was just beginning to snow. She was in the act of raising her umbrella, when she stepped into one of these depressions, in front of a house occupied by one Hare. She was thrown, and her leg broken above the ankle.
    There was a depression in front of each house, about eighteen inches wide, in the middle which the bricks were five or six inches lower than on the sides.
    The accident happened during the day-time, and all the witnesses agreed that any one could see the depressions. The plaintiff testified that she did not see the depressions, being, when she fell, in the act of raising her umbrella.
    The agent of the owners testified that it was impossible to lay bricks in cold weather, so that the pavement would not sink over a place or trench recently filled in.
    The following points were presented by defendant below, and refused by the court:
    1. where excavations are made, as in this case, in a public street, for private purposes and for private benefit only, the persons who make them or cause them to be made are answerable for any injury thus occasioned.
    
      2. The city fulfils its duty when it furnishes a complete highway, and is not answerable for the improper modes in which individuals connect their property with the city’s highway.
    3. If the jury believe that the depression in front of Hare’s house was the result of the laying of a drain under the pavement by the owner, then he, or his contractor or tenant, is alone responsible.
    4. Under all the evidence, the verdict must be for the defendant.
    The charge of the court was as follows:
    “In fulfilling the duty to state the law applicable to this case, I need not give you my reasons. I charge you that the plaintiff cannot recover in this case under certain circumstances. Those circumstances you must decide. Every person is required to exercise the ordinary care which prudent people exercise in traveling the streets. It is not every slightly projecting brick or stone in a pavement which makes the city liable in damages to a traveler who stumbles and falls. It is impossible to have city pavements as level as the floor of a house. The law does not require that. If the plaintiff was walking along this street and exercising the care which a prudent person should, and if she came to this hole or depression and did not see it and was injured by reason of that, she is entitled to recover such sum as will compensate her for her injury. You cannot find against the city in any but compensatory damages.
    “ If, on the other hand, you find that this accident was caused by the plaintiff’s negligence in any way, she cannot recover. If she saw this depression in the pavement and took the chance of walking over it, she cannot recover. If she failed to exercise such care as a reasonable prudent person would have exercised under the circumstances, then she cannot recover. By that, I mean, that, if there was negligence on her part, negligence in taking the risk of crossing that place, or negligence of walking without seeing where she was going, she cannot recover. No matter what the negligence of the city, the plaintiff cannot recover if her negligence contributed to her injury. The city need not instantly repair a place in the highway which is out of order. The city is only required to make repairs after notice has been brought home to it that repair is necessary. The notice may be actual or implied. Actual notice is where a proper city official has been notified that there is a defect in the •highway. ImjDlied notice is the notice which'the city is presumed to have when an obstruction in the highway has existed so long that the city should reasonably take notice of it and repair it. If the 'defect complained of in this case existed so long that, in your opinion, the city should have known of it, and if the plaintiff was free from negligence that contributed to the injury, then she can recover compensatory damages and no more.”
    Yerdict for plaintiff for $225, and judgment thereon.
    
      The assignments of error specified the action of the court, 1-4, in declining the defendant’s points, quoting them ; and, 5, in entering judgment for the plaintiff.
    
      Abraham M. Beitler, Assistant City Solicitor, with him Charles F. Warwick, City Solicitor, for the plaintiff in error.
    Where a pedestrian is injured by want of repair of a footway, due to work lawfully done by the owner of a house abutting on the footway, the remedy is against the property owner, and not against the municipality.
    A broad distinction has been drawn in Philadelphia between the cartway and footway of streets. The first paving, both as to roadway and footway, is to be borne by the property owner. Hammett v. Philadelphia, 65 Pa. 146. Thereafter the roadway must be kept in repair by the municipality. It is always paved by the latter and the cost collected fz’om the lot owner. Put the ’footway must be paved by the pz’operty owner’, and it is only when he neglects to pave, that the municipality can do so. The latter decides how the roadway shall be paved, hut the former has the option to use any material he may see fit for the sidewalk, provided the paving is as good as bricks. Hammett v. Philadelphia, supra, dissenting opinion of Reed, J.; Allinson & Penrose’s Philadelphia, 74; Act of February 18, 1769 ; Act of March 25, 1805, § 5; Act of April 10,1826, § 2, P. L. 326 ; Act of April 16, 1838, § 3, P. L. 636 ; Brightly’s City Digest, 259, et seq.
    By ordinance of February 26,1852, omitted from Brightly, it is made the duty of every owner 6Í ground to pave the footway with brick or stone. The ordinance of May 3, 1855, requires citizens to keep in repair the footways.
    That this duty is recognized, is shown by the following cases, where actions have been brought against owners of property by parties injured because of the non-repair of sidewalks: Bears v. Ambler, 9 Pa. 193; Beatty v. Gilmore, 16 Pa. 463; King v. Thompson, 87 Pa. 365; Early v. Ashworth, 15 W. N. C. 142; Brown v. Weaver, 17 W. N. C. 230.
    In West Chester v. Apple, 35 Pa. 284, this court say: “Alleys and doors, and steps and drains, are necessary to connect private property with public streets, and branch-pipes to connect with gas and water mains ; and when the public leaves it to individuals to make such connections, they alone are responsible that the work shall be done without injury to any one.”
    In Hanson v. Warren Borough, 22 W. N. C. 133, this court, say: “ The borough was irr no default, and, even if the alleged ridge of ice was dangerous, the action should have been brought against the owner of the awning by which it was caused, and not against the borough.”
    In Pennsylvania, the liability for non-repair of a highway is statutory. Dean v. New Milford Township, 5 W. & S. 545; Raphe v. Moore, 68 Pa. 406; Perry Township v. John, 79 Pa. 417.
    
      William W. Wiltbank, with him Frank S. Elliot for the defendant in error.
    It is the duty of the city of Philadelphia to keep its streets in a safe condition for public travel, and, if it knowingly neglects this duty and, by reason of such neglect, an innocent person is injured, an action for damages will lie against the city.
    The liability for actionable defects extends to sidewalks, they being deemed to constitute part of the street. Dillon on Municipal Corporations, § 1012; Birmingham v. Dorer, 3 Brewst. 69; Angell on Highways, § 263.
    The corporation has special powers conferred upon it to open, grade, improve and exclusively control the streets; also to tax for the purpose of keeping them in safe condition, order and repair. The duty to keep in fair order, and liability for a failure so to do, necessarily follow. Morse v. Boston, 109 Mass. 446; Erie v. Schwingle, 22 Pa. 384; Easton v. Neff, 102 Pa. 474.
    Admitting the liability of the property owner in the first instance to keep the sidewalk in repair, yet, upon his failure so to do, or whether he so does or not, it is the duty of the city, upon adequate notice, to place the same in a safe condition, in order to insure the safety of travelers passing over and along' the same, and, in default thereof, it becomes liable in damages for negligence, if an innocent person is injured. Township of Newlin v. Davis, 77 Pa. 319; Erie v. Schwingle, supra; Lower Macungie v. Merkhoffer, 71 Pa. 276; Allentown v. Kramer, 73 Pa. 406; Phila. v. Weller, 4 Brewst. 24.
    Jan. 28, 1889.
   Sterrett, J.,

-All the questions of fact presented by the evidence in this case were submitted to the jury in a clear and comprehensive charge to which no just exception can be taken.

In substance, the jury were instructed that plaintiff below could not x’ecover unless the city was guilty of negligence in permitting the side-walk in question to remain in a dangeroxxs condition after notice, express or implied, that it was unsafe for public use. “Implied notice,” said the learned judge, “is the notice which the city is presumed to have when an obstructioxi in the public highway has existed so long that the city should reasonably take notice of and repair it. If the defect complained of in this case existed so long that, in yoxxr opinion, the city should have known it, and if the plaintiff was fx'ee fx’om negligence- that contributed to the injuxy, then she may recover compensatory damages and no more.”

Again, on the subject of contribxxtoxy xxegligence, he said to the jury: “ If, on the other hand, you fixxd that this accident was caused by the plaintiff’s negligence, iix any way, she cannot recover. If she saw the depression in the pavement and took the chance of walking on it, she cannot recover. If she failed to exercise sxxch care as a reasonable, prudent pei'son would have exercised under the circumstances, she cannot recover. By that, I mean, that, if there was negligence on her part, negligence in taking the risk of crossing that place, or negligence in walking without' seeing where she was going, she cannot recover. No matter what the negligence of the city, the plaintiff cannot recover, if her negligence contributed to her injuxy.”

Assuming, as we are bound to do, that the jury, in making up their verdict, were guided by the instructions of the court, they must have found all the controlling facts in favor of the plaintiff below and against the city. The facts were exclusively for their determination, and their conclusions were fully warranted by the evidence. As to the dangerous condition of the side-walk, there was no room for doubt; and, as to the question of notice, the evidence tended to show that, for fivé or six weeks, the side-walk in question was permitted to remain in the dangerous condition described by the witnesses.

Neither of the assignments of error is sustained. The points recited in the first four specifications were rightly refused.

As to the first, conceding that the persons, who made or, caused the excavations to be made across the side-walk for their own benefit, were answerable to plaintiff below for the injury she sustained, it does not follow that the city, under the facts established by the verdict, was not also liable. If it had notice of the dangerous condition of the side-walk, as the jury has found, and neglected to perform its duty to the public by having the street put in safe condition for travel, it was undoubtedly liable for' the consequences of such neglect. Newlin Township v. Davis, 77 Pa. 319; Lower Macungie v. Merkhoffer, 71 Pa. 276. What has just been said is also applicable to the second and third points. As legal propositions, they are both erroneous, especially in view of the facts in this case. The subject of complaint in the fourth specification is the refusal of the court to direct a verdict for the defendant. In view of the evidence, it would have been manifest ei'ror to have done that. The fifth and last specification is without merit.

In West Chester v. Apple, 35 Pa. 284, cited by plaintiff in error, the facts were different from the controlling fact in this case. In that case, the defect in the street, that proved to be dangerous, as soon as the loose earth became saturated with water, was latent as well as of very recent origin, and appears to have been unknown to the borough authorities until the damage was done. In the case at bar, the dangerous condition of the side-walk was manifest and must have been known to the city authorities for some time before plaintiff was injured. It, therefore, became the duty of the city to see that the side-walk was put in a condition that would have been safe for public travel; and, for neglect to perform that duty, it became liable.

Judgment affirmed. J. C. S.  