Kennedy v. City of Williamsport

Opinion by

William W. Porter, J.,

The first gromid upon which a reversal of this case is asked is that there was no competent evidence to show that the high*95way, upon which the injury was suffered, was within the corporate limits of the city defendant, or that the city had any jurisdiction over it. We are of opinion that the evidence was competent and adequate on this point particularly as the only denial attempted to he made by the defendant was by the testimony of the assistant city engineer, who said in reply to a question as to where the city line was located: “ I can’t say, whether it is exactly the center of Wyoming street or the center of McClure’s run .... It has been in dispute, I think, but whether it has been settled or not, I don’t know, I have not looked the matter up.” On the other hand, one of the plain- . tiff’s witnesses said, without objection, that the bridge where the accident happened was in the first ward of the city of Williamsport. Another that he had known the bridge since 1889; that “it went down once. The flood took it away .... The city rebuilt the bridge about six years ago.” It was also said that at a subsequent time the street commissioners made some repairs to it. Furthermore it appears that the place was included in the police protection furnished by the city.

There was abundant evidence of the user of the road and bridge as a public highway by pedestrians and by conveyances, including a line of trolley cars. In this state of the proofs we are not prepared to hold that the plaintiff was bound in the first instance to show an acquisition of the highway by the city by the exercise of the right of eminent domain or by an accepted dedication or by an user for the statutory time. The character of a road as a public highway “ when collaterally raised as hi an action for its negligent maintenance is sufficiently shown so as to shift the burden of proof, by the facts that it has been opened and the public permitted or invited to use it for travel, though the work is only partially finished: ” Shearman & Red-field on Negligence (ed. 1898), sec. 334. The authors add: “ Where the facts that a town has paid for a road or bridge or has repaired it from time to time are relied on to show its public character and the town’s responsibility therefor, it is competent to show that the repairs were begun and continued under a mistaken belief that it was the town’s duty to do so or that at the time the repairs were made the duty of making them' was owing exclusively by another town or a private person.” See also Steel v. Borough of Huntingdon, 191 Pa. 627. The *96plaintiff made out a prima facie case by direct oral testimony that the road and bridge were a public highway within the city and for the proper construction and maintenance of which the city had assumed liability. The burden was thus shifted to the defendant who failed to submit adequate evidence to rebut the plaintiff’s proof.

The second ground urged for a reversal is that the plaintiff was guilty of contributory negligence. We have read the testimony critically and can find nothing to sustain this allegation. The defendant contends that the plaintiff took the east side of the street where there was no sidewalk, and theiefore no invitation for a pedestrian, and that this was negligence on his part. The plaintiff says that in the darkness he tripped while walking on the west side and therefore crossed the street and took the board walk which he found on the east side. This board walk ended unexpectedly and he pursued his course on the same side of the street knowing nothing of the surroundings of the place or of any better way on the west side. It was also testified that the west side was little better than the east and not safe. The question was however one for the jury and to them it was submitted by the charge of the learned court below. This branch of the case was not however strenuously urged by the defendant who presses upon us the contention that the defendant was not negligent.

No citation of authority is necessary for the proposition that a municipality must keep its streets and bridges in a safe condition for ordinary travel. This was not a mere country road which, as was said in Monongahela City v. Fischer, 111 Pa. 9, need not be kept in repair from side to side. It was used by a trolley line between whose tracks the roadway was paved. It was built upon in the vicinity of the bridge. It was in use to its full width and provided with sidewalks on one or in part on both sides. While not a thoroughfare used to the extent of a business street in a large city, it was not a country road within the contemplation of the case above cited.

The contention that the construction of a sidewalk on one side of the bridge was the full measure of the city’s duty and an unreviewable discretionary act cannot be sustained, first because there is some testimony that both sides of the bridge were in an unsafe condition, and, second, because the controversy *97is not regarding the safety of the sidewalk constructed but regarding the safety of the bridge itself as a place of crossing. While the law invests a municipality with power to establish and construct sidewalks and bridges upon the highways and' determine their form of construction, it requires also that their construction shall be reasonably safe and secure: Borough of Easton v. Neff, 102 Pa. 474. Whether the bridge where the plaintiff was injured was properly constructed and guarded was clearly a question of fact which neither the learned trial judge nor this court should assume to determine.

Finding no error in the record, the judgment of the court below is affirmed.