Meachem v. Coraopolis Borough

31 Pa. Super. 150, 1906 Pa. Super. LEXIS 174

Opinion

Opinion by

Beaver, J.,

The appellant thus states the first question involved in this case: “Was there sufficient evidence of constructive notice to the borough defendant of the defective sidewalk to submit to the jury ? ” If this be answered in the affirmative, it follows that the request for binding instructions was properly refused.

An examination of the testimony leaves no doubt of the fact that, the testimony being believed, the defendant had at least constructive, if not actual, notice of the defective character of the sidewalk upon which the plaintiff was injured. The testimony of the plaintiff in her examination in chief, emphasized in the cross-examination, was that the boardwalk was old and in bad condition from the time she came to live in the neighborhood — three years before the accident. A neighbor, Mrs. Curtis, testified that the walk was broken and rotten- and had been so a year before the accident.

It may be well to remark that the question of contributory negligence is not raised.

If the jury believed the testimony, of plaintiff’s witnesses, they were justified in finding that defendant had constructive notice of the defect in the sidewalk and, under such evidence, as was said in McClosky v. Dubois Boro., 4 Pa. Superior Ct. 181, “it would have been error to withdraw the question of notice from the jury.” The facts in that case, as in this, clearly distinguish both from Lohr v. Boro. of Philipsburg, 165 Pa. 109.

The assignments of error are all overruled. Judgment affirmed.