The Burgess and Council of Conshohocken v. Emedio Di Orozio.

owners to pave and keep in repair sidewalks in front of and abutting upon their properties. The McFadden accident happened after this date.

Under the law and this ordinance, it was the duty of the defendant to keep in repair his sidewalk. The true relation of the defendant to the borough was that of a resident property owner bound by the ordinance to keep his sidewalk in question in proper repair. Brookville Borough vs. Arthurs, 130 Pa., 515.

If a municipal corporation is held liable for damages sustained in consequence of the unsafe condition of the sidewalk or street, it has a remedy over against the person by whose act or conduct the sidewalk or street was rendered unsafe, unless the corporation was itself a wrong doer, as between itself and the author of the nuisance;-Brookville Borough vs. Arthurs, supra.

True, the property owner must have notice that his pavement is out of repair, especially so when the premises are in the occupancy of a tenant;-Philadelphia vs. Bergdoll, 252 Pa., 545. Where, however, there is an obstruction on the premises, as in the case before us that existed for more than a year, it is a nuisance to the safety of passers on the foot-walk, and constructive notice is sufficient to make the owner liable. This would be so where the pavement was out of repair for a period, so long, as to impute constructive notice to the landlord;-Reading City vs. Reiner, 167 Pa., 41.

The defendant lived within a few doors of No. 123 Maple street. For a full year as he passed along the pavement of this property, the obstruction was before his eyes. Notice of the existence of a defect in a side-walk should be imputed to the owner of the abutting building within a much less time than that necessary to charge a municipality with notice. He gives the property his constant attention and the defect is sooner discernible; McLaughlin vs. Kelly, 230 Pa., 259. The right of the municipality to sue the property owner for reimbursement is not denied where notice was not given by the borough to the owner to make repairs;-Chester vs. Bank, 9 Pa., Superior Ct., 517. We may add that City of Bradford vs. Barry, 254 Pa., 304, Ashley Borough vs. Coal Company, 232 Pa., 430, and New Castle vs. Kunz, 210 Pa., 187, relied upon by the defendant, do not reverse. or modify this ruling.

We do not mean that the foregoing impressions, formed from

The Burgess and Council of Conshohocken v. Emedio Di Orozio.

a consideration of the case, shall be treated as our final conclusions upon the questions named. Further argument, and a more exhaustive study of the case may change our views.

A serious matter was called to our attention at the argument for the entry of judgment non obstante. The defendant contends that the evidence before the jury shows,-that the water stop was placed in the pavement of the defendant's property by the Springfield Water Company, under the permit and inspection of the plaintiff borough, and that it was in the same condition as at the time of Mrs. McFadden's accident; that the defendant had no control over the said stop, nor had any right or authority, in any wise to change, alter, or interfere with the stop.

If that is the fact, it follows that judgment should be entered in favor of the defendant;-Brookville Borough vs. Arthurs, 130 Pa., 514.

The difficulty arises from the action of counsel for plaintiff in offering in evidence at the trial the statement of the borough's cause of action, and in offering in like manner the affidavit of defence filed by the defendant. The fourth paragraph of this affidavit does assert that the Springfield Water Company placed the water stop in the pavement under the permit and inspection by the borough, and that the defendant has no authority to alter or change the water stop, even if it is dangerous to public travel as placed by the water company and the plaintiff borough.

It is quite manifest to us that counsel for plaintiff did not intend to offer in evidence the defendant's affdavit of defence for any purpose other than to get upon the record certain admissions by the defendant to the allegations made in the plaintiff's statement. This is indicated when we examine the offer itself. It reads, "I offer in evidence the statement of claim of the plaintiff and the affidavit of defense of the defendant, in the case now at bar and at trial, with particular reference to paragraphs 1, 2, 7, 9 and 10". All these paragraphs of the affidavit of defense just named contain nothing more than admission of the truth of the allegations found in the corresponding paragraphs of the plaintiff's statement. Counsel read the said numbered paragraphs from both papers to show the admissions by the defendant. No other paragraphs of the affidavit were read to the jury by counsel for plaintiff. While we may be satisfied of counsel's intent and purpose by this offer, still the fact remains that the

The Burgess and Council of Conshohocken v. Emedio Di Orozio.

affidavit of defense was put in evidence by him in its entirety without limitation to the paragraphs enumerated. The purpose of the offer was not stated nor was the offer restricted in any way.

The defendant, in his brief, assumes and contends that the allegations in the affidavit of defense constitute facts submitted in evidence by the plaintiff.

The authorities seem to support this contention. Where the plaintiff puts in evidence the affidavit of defense without disproving any of its averments, due credit must be given to it, so far as the plaintiff is concerned;-McCord vs. Durant, 134 Pa., 184, Pusey, et. al., vs. Ledward, 1 Delaware County Rep., 185.

When the plaintiff offers the affdavit of defense for the restricted purpose of showing the admissions to the allegations in his statement, the defendant is not relieved from proving his side of the case, so far as it is a denial of the plaintiff's allegations or so far as the affidavit may be a plea in avoidance by setting up new matters; Neely vs. Bair, 144 Pa., 250; Mellon Bank vs. People's Bank, 226 Pa., 261. Wayne vs. Johnson, 48 Pa., Superior Ct., 98.

Through a slip by counsel, the affidavit of defense was in evidence without any proofs denying the wrong-doing on the part of the plaintiff in bringing the dangerous obstruction on the defendant's pavement.

At the trial we assumed that the offer was limited to the paragraphs in the affidavit of defense specified by counsel and afterwards read to the jury by him. To us the offer appeared the usual procedure to eliminate from the proofs any matters that were material when admitted by the defense.

We are not aware that any question was raised at the trial as to the effect of this offer made by plaintiff. If there was it escaped us. Our instructions to the jury indicate that we did not pass upon any such phase of the testimony. Counsel for defendant suggested that we might instruct the jury to render a verdict for the plaintiff-and that he would then file his motion for judgment non obstante. We replied that as this was a case where some oral evidence was submitted, the jury must have the right to pass upon its credibility. We fail to see how, if our attention had been called to this feature of the record, we could have directed the jury to find a verdict for the plaintiff if they

The Burgess and Council of Conshohocken v. Emedio Di Orozio. believed the evidence. How could we do so when the uncontradicted testimony showed, as now contended, that the plaintiff was a wrong-doer in permitting, aiding and encouraging the placing of the dangerous obstruction on the pavement of the defendant?

In order to remedy the error made, in part by the Court, a new trial should be awarded. This is a matter in the discretion of the Court. In our judgment a miscarriage of justice may result if we allow the verdict to stand, or if we enter judgment in favor of the defendant. Where errors of this character are disclosed the Court may order a new trial, even where there is no motion before the Court other than for judgment non obstante veredicto Confer vs. Pennsylvania R. R. Co., 209 Pa., 425.

If the allegations in the fourth paragraph of the affidavit of defense were admissions in evidence before the jury, then clearly the verdict was against the evidence and should be set aside. Where a verdict is not in accordance with the evidence and may result in wrong if it is allowed to stand, the remedy is in the hands of the Court. A new trial should be granted. The trial Court should exercise this discretion unflinchingly; Dinan vs. Supreme Council, 213 Pa., 489. This discretion should not be confused with the right to grant non suits or to enter judgments non obstante; Sloan vs. Philadelphia & Reading Railway Co., 231 Pa., 332. Until judgment, the verdict is under the control of the Court by virtue of its common law powers, as the judge is an essential constituent of the tribunal for jury trial and may refuse judgment and set aside the verdict for any reason which appeals to his judicial discretion; Fisher vs. Hestonville Passenger Railway, 185 Pa. 602.

An error which results from a slip of counsel and a misapprehension by the Court of the true condition of the record should not control the final judgment in the case. This action of the Court in granting a new trial explains why it was necessary to consider the other objections raised by the defendant. If they were sound, in the opinion of the Court, the defendant's motion. should have prevailed, and the granting of a new trial would have been unnecessary.

VOL. XXXVI-No. 48

The Burgess and Council of Conshohocken v. Emedio Di Orozio.

And now October 1920, a new trial is granted in the case. This order disposes of the motion for judgment in favor of the defendant non obstante veredicto.

Court of Common Pleas of Montgomery County

Tyson v. Tyson, et. al.

A. filed her bill in equity against B. her deserted husband and C. executor of the estate of B's father for maintenance out of her husband's estate under Act of May 23, 1907 P. L. 227 and its amendments.

A. and B. were married in 1888, in 1911 B. deserted his wife and nothing has been heard of him since 1916. The amount of the interest of B. in his father's estate has not been determined by the Orphan's Court, but A. is unable to fully support herself and is entitled to mainteance out of B's estate, therefore D. is appointed trustee or receiver to receive the money and to pay out of the income the maintenance herein ordered and if the income should prove insufficient then the principal is to be used.

No. 3, June Term, 1920.

Final hearing on bill in equity by a deserted wife for maintenance out of her husband's estate, under the Act of May 23, 1907, P. L. 227 and its amendments of April 27, 1909, P. L. 182, and July 21, 1913, P. L. 867.

Henry D. Saylor and Henry Freedley, Attorneys for Plaintiff. Evans, High, Dettra & Swartz, Attorneys for M. B. Linderman. Opinion by Miller, J., November 1, 1920.

Service on the defendant husband was had by publication under the acts of 1859 and 1913, and the prothonotary, on order, has entered a decree pro confesso against him for want of an appearance and answer.

The answer of the defendant executor admits that "the defendant, Isaiah U. Tyson, has an interest in the estate of his father, John B. Tyson, but the amount thereof must await the adjudication in the Orphans' Court."

After hearing the evidence and argument of counsel we find the following