Appeal from judgment of Court of Common Pleas of Lawrence County, June T., 1963, Nos. 24 and 25, in case of Benjamin Cooper v. Columbia Gas of Pennsylvania, Inc. et al.
Richard N. McKee, with him Mansell and McKee, for appellants.
Theodore M. Tracy, with him Francis X. Caiazza, and Stokes, Lurie & Tracy, for appellee.
Howard C. Klebe, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Musmanno did not participate in the decision of this case.
The plaintiff in this action was seriously injured when a front wheel of the truck he was operating dropped into a hole 8 to 10 inches deep on a public street causing the vehicle to veer out of control and run off the highway. At the time of the accident, it was raining and the hole was filled and covered with water. Damages were sought from the Columbia Gas of Pennsylvania, Inc. (hereinafter Columbia), and J. F. Travers, Inc. (hereinafter Travers),*fn1 whose negligence allegedly caused and permitted the dangerous condition on the highway to exist. At trial the jury returned a verdict in favor of the plaintiff in the sum of $85,000 against Columbia only. Post-trial motions were overruled by the court en banc, and following entry of the judgment on the verdict, Columbia filed this appeal.
The substance of Columbia's argument on appeal is that the jury could not, under the proof, consistently
return a verdict finding Columbia liable and Travers not liable, and that such a verdict manifestly resulted from a capricious disregard of the law and the evidence. Hence, Columbia maintains that it is entitled to a new trial, and that the court below erred in not making such an order.
The record discloses the following: The hole which caused the accident resulting in plaintiff's injuries was dug in the street by employees of Columbia five days before the occurrence, while the employees were engaged in repairing a faulty gas line located underneath the street. As excavated, the hole was 3 feet deep, 3 feet wide and 4 feet long. Immediately following completion of the gas line repairs, Columbia's employees refilled the hole with the dirt and chunks of pavement which had been removed during the excavating. Since the street was part of the Pennsylvania highway system, such an excavation should not have occurred without the prior issuance of a permit by the highway department. No such permit was requested or issued. Furthermore, if such a permit were issued, regulations of the department required, inter alia, that any break in the pavement be repaired immediately with a 2 inch bituminous material and so maintained until permanent restoration. Columbia's employees did not comply with this regulation. Additionally, if such a permit were issued, it was not assignable or transferable.
In defense Columbia attempted to place the responsibility upon the defendant Travers for failing to repair properly the break on the surface of the street involved. Columbia introduced oral testimony, which was unrefuted at trial, to show that Travers did all of Columbia's paving work in the area; that in accordance with a long standing oral arrangement between them, Columbia ...