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STEARNS ET AL. v. MT. LEBANON TOWNSHIP ET AL. APPEAL SACK (TWO CASES) (07/20/50)

July 20, 1950

STEARNS ET AL.
v.
MT. LEBANON TOWNSHIP ET AL. APPEAL OF SACK (TWO CASES)



COUNSEL

V. C. Short, Pittsburgh, for appellants.

J. Roy Dickie, and Dickie, Robinson & McCamey, Pittsburgh, for Mt. Lebanon.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Arnold

[ 167 Pa. Super. Page 342]

ARNOLD, Judge.

The plaintiffs brought an action of trespass against Mt. Lebanon Township and William A. Sack and Arthur A. Sack, to recover damages for an injury to the wife-plaintiff when she slipped and fell on a public sidewalk. The plaintiffs obtained a verdict against the first class township, with liability over to it from the other two defendants, owners of the abutting property. After judgment the property owners appealed.

In connection with a road improvement Mt. Lebanon Township built a concrete sidewalk, determining for itself the grade. Opposite the Sack property the slope abruptly changed from a 4% to a 14% grade. The wife-plaintiff slipped as she started down the 14%

[ 167 Pa. Super. Page 343]

    grade, where the concrete was smooth. She testified that the cause of the accident 'was a combination of the steepness of the descent and the slippery condition of the surface * * *' There was no water or other foreign substance on the sidewalk. The jury found that the township was negligent and that there was no contributory negligence.

The appellants, the property owners, challenge the lower court's charge that 'if you find that the Township was negligent in maintaining or constructing this sidewalk, and you find a verdict against the Township in favor of the plaintiffs, you must also find a verdict over in favor of the Township against the owners of the premises.' (Italics supplied). This was error.

We held in Golden v. Philadelphia, 162 Pa. Super. 247, 57 A.2d 429, that where a recovery is had against a municipality for injuries received because of a defect in the sidewalk, created by the municipality itself, there can be no recovery over against the abutting owner. This is the situation here. For its own purpose and on its own responsibility the township built the sidewalk so that there was created (as the jury found) a dangerous condition, to wit a 14% grade. This was solely the negligence of the township for which the property owners were not liable. There was no evidence that the smoothness of the sidewalk occurred after its construction, but even if the property owners were negligent after the construction (by allowing the surface to become slippery), the case would be one of concurrent, and not sole, negligence.

In O'Malley v. Laurel Line Bus Co., 311 Pa. 251, 255, 166 A. 868, 869, the Supreme Court thus referred to this type of case: 'If two or more negligences are existing at the time of an injury and concur in producing ...


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