Appeals, Nos. 18 and 20, Oct. T., 1955, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1952, No. 904, in case of Ruth Cooper v. City of Philadelphia, William Carroll, and Leon and Esther Goldberg. Judgment reversed.
Glenn A. Troutman, with him McWilliams, Wagoner & Troutman, for additional defendants, appellants.
Vincent C. Veldorale, Assistant City Solicitor, with him Jerome J. Shestack, First Deputy City Solicitor, and Abraham L. Freedman, City Solicitor, for defendant, appellant.
Peter P. Liebert, 3rd, with him John J. McDevitt, 3rd, for additional defendant, appellee.
E. Seave, with him Irvin J. Good, and Seave & Good, for plaintiff, appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 178 Pa. Super. Page 207]
This action was brought by plaintiff to recover for injuries caused by a defect in the curb on Wood Street at a point west of its intersection with 12th Street in Philadelphia. A hole in the curb caused her to trip and fall when she stepped into it. The city, originally sued, brought in Leon and Esther Goldberg, the abutting property owners, and also William Carroll, a tenant, as additional defendants. At the close of the proofs the court properly directed a verdict in favor of William Carroll. He was in possession under lease of only the first floor of the building. Living apartments on the second floor were leased to other tenants. Where premises as here, are let to several tenants, each occupying different portions, the owners of the property in law are regarded as in possession of the whole and accordingly are primarily liable for defects in the sidewalk in front of their property. Bruder v. Philadelphia et al., 302 Pa. 378, 153 A. 725; Baxter et al. v. Homestead Boro. et al., 120 Pa. Superior Ct. 182, 182 A. 68. The jury found for the plaintiff against the city in the sum of $1,500 with a verdict over against Leon and Esther Goldberg, the owners of the premises. The court in banc properly refused to enter judgment in their favor n.o.v. but in the view of the majority of us, on this record a new trial must be granted.
The plaintiff was employed in the neighborhood and shortly after noon, during her lunch hour on March 6, 1952, she was proceeding on the west side of 12th Street toward Wood Street. She was walking on the sidewalk along the west curb line with a young lady companion on her right. The defect in the curb had existed for more than a year and both the city and the defendant owners had actual notice of it. The size of the defect, as disclosed by the photographs, charge both the property owners and the city with negligence. It was a
[ 178 Pa. Super. Page 208]
clear dry day and since the break in the curb was obvious, the plaintiff was presumptively negligent and the burden was upon her to show conditions outside of herself which prevented her from seeing the defect and which excused her failure to observe it. Lerner v. City of Philadelphia, 221 Pa. 294, 70 A. 755; McDonald v. Mars Borough, 371 Pa. 625, 92 A.2d 199; Walsh v. Phila. et al., 175 Pa. Superior Ct. 622, 106 A.2d 851.
In assuming that burden plaintiff testified: "I left on my way to lunch at twelve-thirty, and I was walking with this other girl, and there was a lot of other people on the sidewalk at the same time, because everybody went out to lunch at the same time, and it was quite crowded. When we got to the corner of 12th and Wood, everyone stopped for traffic, and there was a number of people stopped in front of me, and a number of people behind me, and they were all stopped for traffic moving on Wood Street. When the traffic had cleared, everybody started to move forward at the same time, I along with them, and I took two steps forward and then I took a step forward with my left foot and I felt my left foot sink into this hole. I fell to the street, and I heard my ankle crack as I fell." She ...