Appeal, No. 286, Jan. T., 1954, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1952, No. 1689, in case of Anna Hayden, also known as Anna M. Mooney v. City of Philadelphia, Margie M. Eiler, Morris Getz, The Philadelphia Gas Works Company and Dan A. Cedrone. Judgment reversed; rearguments refused April 18, 1955.
Harry O. Weinberg, for appellant.
Glenn A. Troutman and Richard P. Brown, Jr., with them Arthur Littleton, Morgan, Lewis & Bockius and McWilliams, Wagoner & Troutman, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiff instituted this action of trespass against the City of Philadelphia, alleging that she sustained personal injuries when she fell as a result of a defective sidewalk. The city joined as additional defendants the owner and the tenant of the abutting property, and the Philadelphia Gas Works. The latter joined as an additional defendant its paving contractor, Dan A. Cedrone, on the theory that he had agreed to indemnify it for damages recovered for injuries resulting
from his failure to pave defects within 24 hours after notice to do so.
The jury returned a verdict for plaintiff against the Philadelphia Gas Works. The court molded the verdict as one against the Gas Works and a verdict over for the Gas Works against Cedrone. It then granted the motions for judgment n.o.v. filed by both defendants, and plaintiff appeals. The record discloses that the court was in error.
Taken most favorably to plaintiff, the testimony established: On January 13, 1952, as plaintiff, with four companions, walked along Broad Street, in Philadelphia, her foot sank into a cinder portion of the sidewalk which was three or four inches below the level of the paved portion. Prior thereto, and on January 3, 1952, the Gas Works learned that there existed at this point a circular depression about twenty feet in diameter, extending over the sidewalk. It thereupon excavated to examine its gas main and make it secure, and then filled the excavation with dirt and ashes. There was no guard or barrier placed at the point of excavation of the sidewalk. The Gas Works thereafter made no examination or check of the excavated portion. On January 9th Cedrone was notified by the Gas Works to pave the portion excavated, but the work had not yet been done on the day of the accident. The contract between Cedrone and the Gas Works provided, inter alia, that he would indemnify it from any liability for injuries resulting to anyone and caused by nonperformance of paving work or by "delay in starting the work for more than twenty-four (24) hours after receipt of notice to do the work ..."
The court below disclosed that it granted judgment n.o.v. because "plaintiff established merely the existence of a dangerous condition," that she did not prove "either ...