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SCHWOERER v. CITY PHILADELPHIA ET AL. (07/20/50)

July 20, 1950

SCHWOERER
v.
CITY OF PHILADELPHIA ET AL.



COUNSEL

Richard A. Smith, Philadelphia, for Leva.

William K. Ravetz, James Francis Ryan, Asst. City Solicitors, and Frank F. Truscott, City Solicitor, all of Philadelphia, for City of Philadelphia.

W. Glenn George, Philadelphia, for appellee Edward P. Biggans, Jr.

James H. Lyons, Michael A. Foley, Philadelphia, for other appellees.

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

Author: Arnold

[ 167 Pa. Super. Page 358]

ARNOLD, Judge.

Plaintiff sued the City of Philadelphia for damages sustained when he drove his car into an unprotected ditch extending across his side of the cartway of a public street. The city brought in as an additional defendant (1) Emiddio Leva,*fn1 who dug and maintained the ditch, and also (2) Edward P. Biggans, Jr., a plumber to whom the city had issued a permit to break the street. The jury rendered a verdict for the plaintiff against the city, with liability over to it from Leva. Biggans was exonerated.

From the judgment entered in favor of the plaintiff the city appealed in No. 108. From the judgment absolving Biggans the city likewise appealed in No. 107.

In No. 88 Leva appealed from the judgment entered in favor of the plaintiff; and in No. 93 likewise appealed from the judgment for liability over to the city for the amount of the plaintiff's verdict. All the appeals were argued together and will be disposed of in one opinion.

The verdict for the plaintiff against the city established the following facts:

The plaintiff, at about midnight, was operating his automobile in a Northerly direction on Wynnefield Avenue, a public street paved with 'blacktop.' Plaintiff's vehicle dropped into a ditch extending twelve feet across the street and on the plaintiff's side of the cartway. This ditch was approximately 3 1/2 feet wide and 7 feet deep. ...


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