Earley v. Philadelphia

83 A. 616, 235 Pa. 153, 1912 Pa. LEXIS 517

• Court: Supreme Court of Pennsylvania
• Decided: February 19, 1912
• Docket: Appeal No. 139
• Status: Published

Opinion

Pee Cueiam,

As the appellant was driving over one of the streets of the city of Philadelphia it caved in, and the wagon in which he was seated fell into the excavation to a depth of eight or ten feet. For the injuries sustained he brought this action, which resulted in a verdict for the defendant. Whether the caving in of the street was due to the negligence of the city, or to that of an independent contractor was submitted to the jury as a question of fact for them, the instructions being that, if they should find that the city was not in control of the street at the time of the accident, there could be no recovery, but that, on the other hand, if it was in control and had failed in the performance of a duty to keep the street safe for travel, it would be liable to the plaintiff. The court could not have instructed the jury that the relation between M. & J. B. McHugh and the city was merely that of master and servant. After a review of all the evidence in the case, we have not been persuaded that any of the assignments of error call for a reversal of the judgment, and it is, therefore, affirmed.