Appeal, No. 247, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, July T., 1950, No. 2171, in case of John Ignatowicz et ux., v. City of Pittsburgh. Judgment affirmed.
Ralph S. Davis, Jr., with him Evans, Ivory & Evans, for appellants.
Thomas E. Barton, Assistant City Solicitor, with him Anne X. Alpern, City Solicitor, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an action of trespass brought by John Ignatowicz and his wife, Josephine, for damages on account of injuries received by the wife-plaintiff on March 18, 1950 when she fell on defective steps constructed by the City of Pittsburgh. Mrs. Ignatowicz owned and occupied certain property known and numbered as 35 Hartford Street, which abuts Hartford Street on the westerly side. Hartford Street is an open unimproved street 30 feet wide, within the City limits. A number of years ago, because of the very steep grade of the street, the City erected wooden steps in the middle of the cartway. By a general ordinance relating to streets not otherwise covered by special ordinance, 6 feet on either side of Hartford Street is reserved for sidewalks and 18 feet is set aside for cartway.
The steps in question were erected 13 feet from the western edge of the street; that is, they were not built in the 6 foot area reserved for sidewalk but had been constructed in what would normally be the cartway. The front wall of the wife-plaintiff's house and also the front walls of the adjoining houses along the street are built flush with the building line or western edge of the street.
Sometime prior to March 18, 1950 (no evidence was available exactly when), a porch was erected which extended 5 feet into the 6 foot area reserved for sidewalk. In front of the porch the 8 foot space extending out to the steps was fenced in by hedges and converted into a front yard. The wife-plaintiff fell when one of these steps contiguous to her yard gave way as she was descending the stairway. The present appeal is from the refusal of the lower court to remove the compulsory non-suit which the trial judge granted on the ground that the plaintiffs were under a primary duty to repair this portion of the steps.
The plaintiffs now contend that the judgment of non-suit should be reversed because they are not "abutting" or "adjoining" property owners since their house is isolated by a 13 foot strip of a dedicated, opened but unimproved street and that this isolated strip insulates them against the duty set forth by statute and ordinance to repair or maintain the City steps here in question.
The Act of May 16, 1891, P.L. 75, 53 PS § 771, provides: "The municipal authorities may require sidewalks, boardwalks and curbstone to be laid, set and kept in repair, and after notice to the owner or owners of property to lay, set or repair such walks or stone in front of his, her or their property, and his, her or their failure to do so, the said municipal authorities may do the necessary work and assess the cost thereof upon the property of said owner or owners in front or along which said walk or curbstone so laid, set or repaired, shall be situate, and file a lien therefore or collect the same by action of assumpsit.".
In accordance with this statutory authority by Ordinance No. 161 of 1930 of the City of Pittsburgh, a duty was imposed on all owners of property abutting or adjoining ...