Appeal from judgment of Court of Common Pleas of Delaware County, Sept. T., 1961, No. 1830, in case of Margaret Flynn v. City of Chester, Anna Jones and Dorothy Quann.
J. E. Lastowka, with him Francis A. Ferrara, for appellant.
Melvin G. Levy, with him McClenachan, Blumberg & Levy, for City of Chester, appellee.
Charles E. Rankin, with him Rankin & Rankin, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno dissents.
This is an appeal from the judgment of the Court of Common Pleas of Delaware County after a jury verdict in favor of all three defendants, the City of Chester, Anna Jones, and Dorothy Quann. After denial by the court below of plaintiff's new trial motion and entry of judgment, plaintiff appealed to this court.
Anna Jones and Dorothy Quann reside in adjoining houses, being Nos. 625 and 627 Morton Avenue, Chester, Pennsylvania, respectively. In 1944, Anna Jones replaced a brick sidewalk in front of her property with a concrete sidewalk; the City installed vents and pipes; there is no evidence that the City established the grade of the sidewalk or that it participated in the creating of the 3/4 inch difference, which existed when the new concrete sidewalk was installed; the Quann sidewalk of brick was raised about 3/4 of an inch to meet the grade of the concrete sidewalk.
On November 15, 1959, at about 9:00 P.M., the plaintiff and her niece were walking south on Morton Avenue, talking as they went; the plaintiff says she was looking at her niece as she talked and was not watching the sidewalk in front of her. It was dark and the sidewalk was not well lighted. Plaintiff was and is a stout, heavy person. The testimony seems to indicate that as of November 15, 1959, the brick sidewalk in front of Miss Quann's property and at the party line between the Quann and Jones property had sunk about three quarters of an inch. The plaintiff tripped over the edge of the concrete sidewalk which
she says was protruding about 1 1/2 inches, fell and suffered injuries.
Appellant alleges three errors as requiring a new trial.
1. The trial judge should have charged that the City of Chester could be found liable, without right of recovery ...