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WALSH v. PITTSBURGH (ET AL. (11/08/54)

November 8, 1954

WALSH
v.
PITTSBURGH (ET AL., APPELLANT).



Appeal, No. 238, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, July T., 1951, No. 3101, in case of Evelyn Walsh v. City of Pittsburgh et al. Judgment affirmed. Trespass for personal injuries. Before MARSHALL, J. Verdict directed for defendant city, verdict for plaintiff in the sum of $4000 and against defendant paving company, and verdicts in favor of other additional defendants; defendant paving company's motion for judgment n.o.v. refused. Defendant appealed.

COUNSEL

James J. Burns, Jr., with him Tom P. Monteverde, for appellant.

Edward A. Schultz, with him Seif, Schultz & Frost, for appellee.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 379 Pa. Page 230]

OPINION BY MR. JUSTICE MUSMANNO

On July 7, 1950, the Pavia Company (in this Opinion to be referred to as Pavia), a contracting corporation, engaged with the Commonwealth of Pennsylvania to make certain excavations on Beechwood Boulevard in the City of Pittsburgh for the purpose of placing beneath the highway a 20" high pressure water pipe. In the performance of this work, Pavia dug or permitted to develop in the excavation process, a trench about 15 feet long, 4 feet wide and from one foot to 4 feet deep at a point where Beechwood Boulevard intersects with Alger Street and Greenfield Avenue. These three converging streets are all public highways which accommodate considerable metropolitan traffic.

On the night of April 22, 1951, at about 10 o'clock, the plaintiff Evelyn Walsh was riding over Beechwood Boulevard in an automobile being driven by a Joseph Gannon. When the car reached the intersection above described, it fell into the hole at that point and as a consequence the plaintiff suffered serious injuries. Evelyn Walsh sued the City of Pittsburgh in trespass, the City brought in the owner of the car, Oline Gannon,

[ 379 Pa. Page 231]

    the driver of the car, Joseph Gannon, and the Pavia Company as additional defendants. At the ensuing trial the court granted a non-suit in favor of the City of Pittsburgh and the jury exonerated Oline Gannon and Joseph Gannon, but brought in a verdict of $4,000 in favor of the plaintiff against Pavia. Pavia moved for judgment n.o.v., the motion was refused and the case is before us on appeal.

The learned trial court properly refused judgment n.o.v. Whoever digs a pit in the middle of a busy street and fails to properly barricade it in, cannot complain if he falls into it himself by being held responsible in money damages to those who are injured through his imprudence.

Pavia complains on appeal that it met its obligations toward the public by placing a wooden "horse" beside the trench, by using flares, and by employing a watchman. These defences could have been completely exculpatory if they were supported by fact, but the ...


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