Appeal, No. 302, Jan. T., 1954, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1949, No. 6297, in case of Mary I. Sculley v. City of Philadelphia and Philadelphia Transportation Company. Judgment affirmed.
James L. Stern, Deputy City Solicitor, with him Aaron W. White, Assistant City Solicitor, Abraham L. Freedman, City Solicitor, Raymond Kitty, Assistant City Solicitor and Jerome J. Shestack, First Deputy City Solicitor, for appellant.
Edward A. Collins, Jr., with him James E. Riely, and Riely, Powell, Earle & Wetherill, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff, Mary I. Scully, brought an action of trespass against the City of Philadelphia to recover damages for injuries sustained by her as the result of a fall allegedly due to a hole or depression in the surface of Lancaster Avenue. The defect in the street was between the rails of one of the trolley tracks of the Philadelphia Transportation Company, and the City brought in the Company as an additional defendant. A jury returned a verdict of $3,200 against both defendants. The Transportation Company filed a motion for judgment non obstante veredicto which was granted. The City filed a motion for new trial which it withdrew and a motion for n.o.v. which was refused, and this appeal is from the judgment entered on the verdict. The City does not question the entry of judgment n.o.v. in favor of the Transportation Company.
Lancaster Avenue runs approximately east and west, and is intersected by 52nd Street which runs generally north and south. Lansdowne Avenue runs from the southwest to the northeast into Lancaster Avenue where it ends about 75 feet west of where 52nd Street crosses Lancaster Avenue. This results in a large intersection area. There are street car tracks on Lansdowne Avenue which extend into Lancaster Avenue and then turn north on 52nd Street. The paved
area of Lancaster Avenue is 50 feet in width and that of 52nd Street, 60 feet. The Lansdowne Avenue cartway way is 34 feet wide.
On May 28, 1949, a clear day, at about 1:30 P.M., plaintiff alighted from a street car which was proceeding northeast on Landsdowne Avenue, at the designated stop on the south side of Lancaster Avenue. There was a traffic signal at this corner and another on the other side of Lancaster Avenue which the plaintiff testified she was facing when she started across Lancaster Avenue after the traffic light had turned green. She stated that she looked where she was going but her attention was distracted by an automobile which was coming from Lansdowne Avenue and turning east on Lancaster Avenue. When the plaintiff reached a point between the rails of the Transportation Company's eastbound track, her heel caught in a hole or depression causing her to fall and suffer a broken hip. According to the testimony, the defect in the street was about two feet long, about two inches wide and from two to six inches deep.
The City first contends that it owed no duty to plaintiff because Lancaster Avenue where the plaintiff fell had been adopted as a State highway by Act of Assembly and th duty of maintenance and repair of the street surface devolved upon the Commonwealth.
Paragraphs 3 and 4 of the plaintiff's complaint in substance averred that the City had general supervision and control of streets within its corporate limits and therefore the duty of maintenance and repair of Lancaster Avenue. After the time for filing an answer had expired, the City petitioned for and obtained a rule to show cause why it should not be allowed to file an answer nunc pro tunc. In the proposed answer ...