Swartzlander v. Borough of Kittanning

Opinion by

Orlady, P. J.,

The plaintiff, while walking on a sidewalk in the defendant borough, tripped on an obstruction within the .line of the footwalk and received injuries for which a jury allowed her $500. The obstruction consisted of what are popularly known as gas and water boxes, located in the sidewalks and projected four or five inches above the surface of the walk. Their location and character of construction were authorized by the municipal authorities and they are admittedly a *114part of a general system that is maintained throughout the borough. The pavement at that time was what was called a dirt walk, and it was intended on the completion of the pavement surface to have the top of these boxes flush with or slightly above the perfected pavement. While primarily intended to enable the property owners to cut off water and gas service through these openings, they must still be recognized as constituting a part of the pavement, over which the municipal authorities had the right to exercise their control. Assuming that these gas and water boxes were properly located and approved by the municipal authorities, the fact remains that at' the time this plaintiff received her injuries they were a source of danger to persons legitimately using the sidewalk. The dirt pavement might not be surfaced with a final covering such as slate, brick or concrete for many years, and in the meantime dangerous obstructions to the safe use of the pavement by pedestrians could not be justified, The plaintiff did not have actual knowledge of their presence, and she was using the sidewalk in the ordinary manner. The measure of duty of the borough is to keep its sidewalks reasonably safe for ordinary use: Collins v. Philadelphia, 227 Pa. 121. While the evidence does not disclose who placed the gas and water plugs within the pavement line, it is conceded that the municipal authorities knew of and approved their location and construction. The action is against the. borough alone, and whether the plaintiff was guilty of contributory negligence under all the testimony was clearly a question for - the jury; this was fairly submitted in a charge that is not challenged by the defendant, the only assignment of error being the refusal of its point that under the pleadings and evidence the verdict should be for the defendant. The disputed facts were fairly submitted, and the evidence clearly warranted the verdict as returned. The motion for judgment non obstante veredicto was properly denied.

The judgment is affirmed.