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FERRANG v. MICHAELS (ET AL. (06/17/65)

decided: June 17, 1965.

FERRANG
v.
MICHAELS (ET AL., APPELLANT)



Appeals from judgments of Court of Common Pleas of Allegheny County, April T., 1961, No. 1323, and Jan. T., 1961, No. 459, in cases of Anna V. Ferrang v. Hazel Michaels et al.; and Fred R. Luck v. City of Pittsburgh et al.

COUNSEL

Robert Engel, Assistant City Solicitor, with him David W. Craig, City Solicitor, for City of Pittsburgh, appellant.

James A. McGregor, Jr., with him Reed, Egler, McGregor & Reinstadtler, for defendant property owner, appellee.

Aaron Rosenzweig, with him Samuel M. Rosenzweig, for plaintiffs, appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J. Opinion by Jacobs, J. Hoffman, J., joins in this opinion.

Author: Ervin

[ 206 Pa. Super. Page 45]

These two appeals by the City of Pittsburgh, defendant, are from the order of the Court of Common Pleas of Allegheny County dismissing its motion for a new trial.

On August 29, 1960 plaintiff Anna Ferrang was a passenger in a Cadillac sedan driven by plaintiff Fred R. Luck. As the car reached a point in front of premises 2363 Vodeli Street, owned by the defendant, Hazel Michaels, it was struck and pierced by an angle iron

[ 206 Pa. Super. Page 46]

    which protruded 24 inches into the roadway from the curb. Plaintiff Ferrang sued the property owner Michaels, original defendant, who joined the City of Pittsburgh and Luck as additional defendants. Luck sued the City of Pittsburgh and the property owner, Michaels.

At the trial before Weiss, J., and a jury, verdicts were returned in favor of Ferrang for $1,000 and for Luck in the amount of $5,000 against the City of Pittsburgh only. In both cases the jury found in favor of the property owner Michaels. Defendant City of Pittsburgh's motions for a new trial were overruled and judgments entered on the verdicts. The city appealed.

The curb had been installed by the city when the street was paved in the year 1927 and was separated from the sidewalk by a 24-inch strip of grass. The curbing had been constructed with the angle iron imbedded in the top. Some of the concrete in the curb disintegrated and the angle iron separated from the concrete in front of the Michaels premises. Plaintiff Luck said he was driving in the street, two feet from the curb, when the bent angle iron flew up and entered his car. Witnesses testified the angle iron came up into the window of the car, made a loop like a horseshoe, broke the glass out of the rear window of the car and inflicted injuries on the plaintiffs. Constructive notice both to the city and the property owner of the dangerous condition was clearly established.

Defendant Michaels admitted ownership of premises 2363 Vodeli St., but denied responsibility for or control of the curbing and steel strip which caused the accident. She also testified that the steel strip "taken up by the car was from the lot next door, not my lot. . . ." The attorney for the property owner read into evidence undenied averments in the owner's complaint ...


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