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HUGHES v. HANNA (ET AL. (09/11/58)

September 11, 1958

HUGHES, APPELLANT,
v.
HANNA (ET AL., APPELLANT).



Appeals, Nos. 115 and 145, Oct. T., 1958, from order of Court of Common Pleas of Delaware County, June T., 1956, No. 2112, in case of Edward R. Hughes v. John Hanna and Sons et al. Order reversed.

COUNSEL

Edward S. Lawhorne, for plaintiff.

Edward D. McLaughlin, for defendant, borough.

Edward F. Cantlin, with him J.H. Ward Hinkson, for defendants, contractors.

Robert W. Beatty, with him Earnest L. Green, Jr., and Butler, Beatty, Greer & Johnson, for defendant, subcontractor.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Gunther

[ 187 Pa. Super. Page 467]

OPINION BY GUNTHER, J.

These appeals are from the refusal of the motion for judgment non obstante veredicto and the granting of a new trial and the granting of a non-suit against two of the defendants. Edmund R. Hughes instituted an action in trespass against the Borough of Brookhaven, John Hanna and Sons and Edgar Mitchell as a result of an accident which occurred on East Brookhaven Road in Delaware County. On September 28, 1955, plaintiff was driving his car on East Brookhaven Road at a point about thirty feet east of Middleton Road in the Borough of Brookhaven. At that point the roadway collapsed, his vehicle stopped suddenly when the left front wheel entered this hole and he was thrown out sustaining injury to his neck and a right inguinal hernia.

[ 187 Pa. Super. Page 468]

The evidence disclosed that the Borough of Brookhaven had secured a permit from the State Highway Department to construct a sewer in Brookhaven Road and entered into a contract with John Hanna and Sons for the construction of this sewer line. The contractor entered into a sub-contract with Edgar Mitchell for the digging of the trench and laying of the sewer pipe. All of Mitchell's work was completed by May 27, 1955. Shortly thereafter, Hanna and Sons paved over the ditch and continued to pave with binder and amesite to the time of the accident. The permanent restoration of the paving had not been done. All of the work was supervised and inspected by the borough engineer who did not require the installation of permanent paving at any time prior to the accident.

At the trial, plaintiff alleged that the permanent restoration of the paving should have been completed prior to permitting traffic to travel thereon and the failure to do so was negligence on the part of the contractor, sub-contractor and the borough. The evidence disclosed, however, that the sub-contractor had nothing to do with the paving, and, after the plaintiff's case, a non-suit was entered on behalf of Mitchell. The case was submitted to the jury on the liability of the contractor and the borough, and it returned a verdict in favor of plaintiff against the Borough of Brookhaven alone. A motion for judgment n.o.v. was filed and argued and the court below refused the motion but granted a new trial limiting it against the borough alone on the ground that plaintiff's expert witness was not, in fact, an expert and therefore should not have been permitted to testify. From ...


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