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SCHULTZ v. PIVAR (04/23/52)

April 23, 1952

SCHULTZ
v.
PIVAR, APPELLANT



Appeal, No. 3, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, Oct T., 1948, No. 1103, in case of John E. Schultz v. City of Pittsburgh, Lillian Pivar and Allegheny County Steam Heating Company. Judgment affirmed.

COUNSEL

Kim Darragh, with him George Y. Meyer, for defendant, Pivar, appellant.

V. J. Rich, with him Margiotti & Casey, for plaintiff, appellee.

Joseph F. Weis, with him Sherriff, Lindsay, Weis & McGinnis, for defendant, Allegheny County Steam Heating Company, appellee.

Anne X. Alpern, City Solicitor and Louis Dadowski, Assistant City Solicitor, for defendant, City of Pittsburgh, appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Musmanno

[ 370 Pa. Page 273]

OPINION BY MR. JUSTICE MUSMANNO

On February 27, 1948, John E. Schultz, the plaintiff in this case, stepped on what is the potential ruination of every pedestrian, a sidewalk manhole cover. He plunged into it up to his hips, one leg falling totally within and the other partly out of the hole which opened up by the tilting of the cast iron disc. This happened in front of the Triangle Building at 701 Smithfield Street, Pittsburgh, and the plaintiff brought suit against the owner of the building, Lillian Pivar, and the City of Pittsburgh. Lillian Pivar brought in the Allegheny County Steam Heating Company as an additional defendant, averring that through its servants, agents and employes, it caused the accident by a negligent manipulation of the manhole cover in the process of installing and servicing steam heating equipment in the office building under its contract to do so.

At the ensuing trial, the Court granted binding instructions in behalf of the defendant City of Pittsburgh, and the jury returned a verdict in favor of the plaintiff in the sum of $7500 against Lillian Pivar, absolving the Allegheny County Steam Heating Company of all blame. The defendant owner of the building has appealed to this Court for judgment n.o.v. and for a new trial, motions requesting same having been refused by the Court below.

Who was responsible for this accident: The owner of the Triangle Building in front of which the plaintiff came to grief, or the Allegheny County Steam Heating Company which admittedly did some work in and around the manhole cover on the day of the accident?

William Putz, maintenance superintendent of the Triangle Building at the time the tilting manhole cover precipitated the plaintiff's fall, testified that some eight months prior thereto he examined this very lid, which was made of cast iron about 3/8ths of an inch thick, lipping at the edge to a thickness of 5/8 inch, and

[ 370 Pa. Page 274]

    fitting into a cast iron casting with a 3/4ths inch flange.

Mr. Putz said that although the lid, which was at least 20 years old, had, because of lack of use, sealed itself into its setting, there was a device, known as a locking bar, beneath it to further insure it against tilting. When he examined this device some eight months to a year before the accident he found that its under-center metal strip and 14 inch X 5 inch bolt, had rusted away, and, not wanting to "waste time looking around" for the necessary bolt replacement he cut three pieces of pipe in a tripod shape and with them braced the lid. That Mr. Putz's inventive improvisation was not equal to the mechanical requirements of the situation is evidenced by the following: "Q. Now, after the accident was this tripod that you spoke about, was that up or down? A. That was down, that was laying, it collapsed in the hole. Q. It collapsed in the hole, is that right? A. Yes. Q. ...


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