Appeals, Nos. 397 and 398, Oct. T., 1963, from judgments of Court of Common Pleas of Lancaster County, Dec. T., 1962, No. 72, and Sept. T., 1962, No. 30, in cases of Earl N. Siegler v. Counties Contracting & Construction Company; and Franklin H. Kreider et al. v. Earl N. Siegler et al. Judgments affirmed.
F. Lyman Windolph, with him John I. Hartman, Jr., and Windolph, Burkholder & Hartman, for appellant.
Theodore L. Brubaker, for appellees.
W. Hensel Brown, and Brown & Zimmerman, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 203 Pa. Super. Page 569]
OPINION BY MONTGOMERY, J.
Earl N. Siegler, driving his 1949 International one-and-one-half ton truck with a flat bed body westwardly on the right-hand side of West Main Street in Strasburg, Lancaster County, Pennsylvania, struck a depression in the street and as a result crossed to the left lane and ran into a 1958 Nash four-door sedan automobile owned and being operated by Franklin H. Kreider eastwardly on that street. Mrs. Mary L. Kreider was a passenger in her husband's automobile. The accident occurred at or about 9:15 p.m. on February 16, 1961.
[ 203 Pa. Super. Page 570]
Siegler brought an action in trespass against the Counties Contracting & Construction Company (Contractor) for damages to his truck and the Kreiders brought suit against both that company and Siegler for damages to the Nash automobile and for personal injuries.
Contractor admitted that it "did dig the ditch in question in the 100 block of West Main Street in Strasburg which is involved in the suit." The evidence disclosed that it had been dub in connection with work being done by Contractor for the Bell Telephone Company, whose building was nearby. It was described as being twelve to eighteen inches wide, running southwardly from a manhole in the street located about two and one half feet from the northerly line of this thirty-foot street to the other line of the street. When it had been dug one month before the accident flares and trestles had been placed about it to prevent traffic from running into it. However, the ditch had thereafter been filled by Contractor with stones and earth and refilled on one or two occasions by someone whose identity was not disclosed. The refilling had been necessitated by subsidence of the fills previously placed therein. The last refilling had occurred one or two days before the accident. At the time of this accident a depression existed, described as being from four to eight inches deep, with two inches of water in it. It had rained the night before and there had also been water from melting snow, a bank of which stood on the side of the street. However, no witness could say how long the condition of the ditch at the time of the accident had existed.
Plaintiffs' witness, T. H. Long, Chief of Police, testified that at eleven o'clock the night before the accident he had crossed over the ditch while on patrol "And at that time it was no hazard", but that ...