Appeals, Nos. 161 and 166, Jan. T., 1954, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1951, No. 2078, in case of Nicholas Potere v. City of Philadelphia, Oxford Construction Company, Inc. and Curly Construction Company, Inc. Judgment affirmed.
James Francis Ryan, Assistant City Solicitor, with him Israel K. Levy, Assistant City Solicitor, Jerome J. Shestack, First Deputy City Solicitor and Abraham L. Freedman, City Solicitor, for City of Philadelphia, appellant.
Ward C. Henry, with him Herbert A. Barton and Swartz, Campbell & Henry, for Curly Construction Company, appellant.
Joseph G. Feldman, with him Edward J. Marcantonio, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff, Nicholas Potere, instituted this action in trespass against the City of Philadelphia to recover for personal injuries sustained by reason of the collapse of a street upon which he was driving. The original defendant joined Oxford Construction Company, Inc., with whom it had contracted for the construction of a storm water relief sewer, as an additional defendant. The additional defendant in turn brought upon the record as second additional defendant, Curly Construction Company, Inc., to whom it had subcontracted the tunneling work for the sewer. After trial of the issue, binding instructions were granted by the court for Oxford and the jury returned a verdict in favor of the plaintiff against the City and Curly in the sum of $5,000. Motions for new trial and judgment non obstante veredicto filed by both defendants were dismissed by the court en banc and judgment was entered
upon the verdict. These appeals by the City and Curly followed.
On September 22, 1951 at 12:10 P.M. the plaintiff, an employe of Cities Service Oil Company, was driving a cab-over-engine type gasoline tank truck, weighing approximately 9 tons, south on Frankford Avenue in the City of Philadelphia. Frankford Avenue, a well travelled thoroughfare running in a north-south direction, is 49 feet in width between curbs with a double set of street car tracks situated in the middle. After stopping for a red light at the intersection of Frankford Avenue and Clearfield Street, the plaintiff turned west into Clearfield Street and had nearly completed the turn when part of the road-bed of Clearfield Street suddenly gave way, causing the rear of plaintiff's truck to fall 19 feet into the cavity that resulted. The cab of the truck was suspended momentarily on a manhole at the level of the street, thereby affording the plaintiff an opportunity to extricate himself from the cab before the entire truck was engulfed in the subsidence.
Curly, as the subcontractor of Oxford, had been engaged in driving a tunnel under Clearfield Street, beginning at a point 200 feet east of Frankford Avenue and extending westwardly for a distance of 500 feet. The tunnel was 11 feet in diameter and ranged in depth from 28 to 34 feet below the street surface, varying according to the grade of Clearfield Street. Curly had by September 22, 1951, the date of the occurrence, and by September 22, 1951, the date of the occurrence, had progressed 35 feet west of the west curb line of Frankford Avenue, to a point almost directly under the site of the cave-in.
Roy Nichols, the supervisor for Curly, testified on behalf of the plaintiff that when he started on the job in July, 1951 the presence ...