Aiken v. City of Philadelphia , 9 Pa. Super. 502 ( 1899 )

Opinion by

Oblady, J.,

The plaintiff was injured by driving in the night-time into an unguarded hole in a public street in the city of Philadelphia.

A street railway company reconstructed its track and, after relaying the rails, a ditch at the side of the track was allowed to remain open and without protection from the time tbe work was done in January or February until after May 7, at which time the plaintiff was injured. The material facts shown by the plaintiff as to the size of the ditch, the condition of the work, and the time the ditch was allowed to remain unprotected were denied by the defendant.

The work was done by a traction company, under an ordinance of the city by the terms of which the company was to keep and maintain in good order, at all times, all streets traversed by its lines. It was provided also that in the construction and equipment of its roadbed, the materials, supplies and workmanship were subject in every way and at all times to the approval and inspection of the authorities of the city. The company was to repave in good, substantial and workmanlike manner, and to the satisfaction of the city; and this work was to be pushed and completed with all reasonable and proper diligence, and if not so done, the director of department of public works and public safety was authorized to enter on the streets and complete the work at the expense and cost of the traction company.

In order to effect this improvement, the right of the city to permit the streets to be made temporarily unsafe is not questioned by the appellee. The right to recover is based on the unnecessary delay in making the street safe for travel after the tracks had been changed, and the negligent manner in which the dangerous place was cared for by the city; as if plaintiff’s testimony be believed, it must be presumed to have had notice, or its equivalent, of the unsafe condition.

The time when the work was begun and completed was in dispute, and the jury alone could pass on the question as to whether the accident happened while the work was in progress, or at an unreasonable time thereafter. This question of fact was fairly and plainly left to the jury, viz : “Was the work of the traction company going on at that time and was the excavation a part of that work ? If it was, the city is not liable. If the company had ceased its work and left the street in a condition which was dangerous and unsafe, and if that condition existed long enough to charge the city with notice, then the city would be liable for damages, if the accident happened without any negligence on the part of the plaintiff.”

Under the ordinance the city did not delegate its control of the streets to the traction company so as to make it an independent contractor, but retained absolute control over the manner of doing the work, and if dissatisfied it could have asserted its authority by doing the work at the cost of the traction company.

The duty of a borough or of any municipality in requiring the property owner to make and maintain a safe sidewalk is secondary and supplemental, and its breach of duty is not in failing to do the work, but in failing to compel the owner to do it: Lohr v. Phillipsburg, 156 Pa. 246; Pittsburg v. Daly, 5 Pa. Superior Ct. 528; but the primary duty of keeping the streets in a safe condition is on the municipality, as was held in Brookville v. Arthurs, 180 Pa. 501. It is undoubtedly the duty of a municipal corporation, having the exclusive care and control of its streets, to see that they are kept in a safe condition for the passage of persons and property, and if that plain duty is neglected, and thereby injury results to any one, the corpora-' tion is primarily liable to the injured party: Brookville v. Arthurs, 152 Pa. 834. The action was properly brought against the city, as the injured party may, if he so elects, sue at once the active wrongdoer, who is ultimately liable: Gates v. P. R. R. Co., 150 Pa. 50; 16 La. Ann. Rep. 554, and notes.

In the light of the charge to the jury, it was not error to refuse the third point as stated by the defendant: McHugh v. Schlosser, 159 Pa. 480.

The assignments of error are overruled and the judgment is affirmed.