Appeal from judgment of Court of Common Pleas of Armstrong County, Dec. T., 1966, No. 352, in case of George W. Green v. Borough of Freeport, original defendant, and Paul Haggerty, Olga Haggerty, Roger Powell and Sidney Shapiro, t/d/b/a Cutrate Furniture Company, additional defendants.
James G. Callas, with him Callas and Graff, for appellants.
William A. Weiler, with him Egler, McGregor & Reinstadtler, for appellee.
Clyde T. MacVay, with him Evans, Ivory & Evans, for appellee-plaintiff.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Watkins, J., dissents.
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In this case, a tree grew in the grass plot between the curb and sidewalk in such a manner that a large limb extended over the street at a height of 7 feet 10 3/4 inches. A furniture van, 10-feet high, was driven into the limb resulting in injuries to the plaintiff, George W. Green, who was a passenger in the truck. A jury found in favor of the plaintiff against both the Borough of Freeport and Paul and Olga Haggerty, the owners of the house and lot in front of which the tree grew. The court below molded the verdict as one against Freeport Borough with a verdict over in favor of the borough against Paul and Olga Haggerty, on the basis that the Haggertys were primarily liable. The Haggertys have appealed, asking for either a new trial or that the jury verdict be permitted to stand.
Admittedly there was an obstruction to vehicular traffic, and, in this appeal, no one questioned the jury's verdict finding both the borough and the abutting owner negligent; the sole issue is whether there is primary and secondary liability or whether there is joint liability.
In holding the adjoining landowner primarily liable, the court below relied on a recent case of this Court: Ferrang v. Michaels, 206 Pa. Superior Ct. 43, 211 A.2d 96 (1965). In that case, part of the iron facing on the curb came loose from the cement and extended into the cartway causing an obstruction which resulted in injury to the occupants of an automobile traveling on the cartway. The jury found the city alone liable. In this Court, six judges sat on the city's
[ 218 Pa. Super. Page 337]
appeal for a new trial: One judge would have affirmed while five judges agreed that a new trial must be granted because the jury failed to follow the court's instructions. Three judges filed an opinion giving their views that the property owner was primarily liable in such a situation, while two judges filed an opinion that the primary liability rested on the city. In Ferrang, the judgment of this Court, supported by a majority of the judges, was the decision that a new trial be granted. Neither opinion was supported by a majority of the judges and represents only the reasoning of the judges supporting each opinion and is not a judgment of the Court. See Butts v. Armor, 164 Pa. 73, 30 A. 357 (1894). The contents of those opinions cannot be considered binding precedents.
It is true that in Pennsylvania the abutting property owner is under a primary duty to keep his sidewalk area, to and including the curb, in a state of reasonable repair and if someone is injured because of a failure to perform that duty the municipality is only secondarily liable. Ignatowicz v. Pittsburgh, 375 Pa. 352, 100 A.2d 608 (1953); Fisher v. Philadelphia, 112 Pa. Superior Ct. 226, 170 A. 875 (1934).*fn1 The duty of keeping the cartway of its streets in travelable condition is on the municipality and it is liable for injuries sustained because of its failure to use ordinary care to keep them in such condition provided it had notice of the defect. Lawrence v. Scranton, 284 Pa. ...