192 A. 871
Supreme Court of Pennsylvania.May 26, 1937.
July 7, 1937.
Pleading — Averment — Negligence — Defect in sidewalk — Non pros.
In an action of trespass for injuries resulting from a fall on a sidewalk, a judgment of non pros. was improperly entered where plaintiff averred that her foot caught in a depression in the sidewalk, and set forth the exact dimensions and location of the depression, and alleged that the depression had been maintained by defendants for a long time and that they had neglected to repair it, and averred, with particular relation to the power company defendant, that it had removed its pole at the point of the depression a long time prior to the accident and failed to fill up properly the resulting hole.
Argued May 26, 1937.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 37, May T., 1937, from judgment of C. P. Dauphin Co., Jan. T., 1936, No. 544, in case of Ferol E. Schriver v. Isaac Friedenheit et al., trustees, members of Pelgram Meyer, and Pennsylvania Power and Light Co., and City of Harrisburg. Judgment reversed.
Trespass for personal injuries.
The opinion of the Supreme Court states the facts.
Rule by additional defendant for more specific statement of claim made absolute. Rule for judgment of non pros. as to additional defendant made absolute and judgment of non pros. entered, opinion by HARGEST, P. J. Defendants appealed.
Error assigned was judgment of non pros.
F. Brewster Wickersham, of Metzger Wickersham, for appellants.
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Carl B. Stoner, of Caldwell, Fox Stoner, for appellee.
Paul G. Smith, Solicitor for City of Harrisburg, appellee.
George H. Hafer, with him Geo. Ross Hull, of Snyder, Hull, Hull Leiby, and Edmund G. Hauff, for Pennsylvania Power
Light Company, appellee.
OPINION BY MR. JUSTICE LINN, July 7, 1937:
Plaintiff was injured by a fall on a sidewalk. The abutting property was owned by Pelgram Meyer, the appellants, hereafter called owner. In her suit she named three defendants — 1, the owner, 2, the City of Harrisburg, hereafter called the city, and 3, Pennsylvania Power Light Company, hereafter called the Light company. For present purposes we may assume that the liability of the city is secondary. The Light company desiring a more specific statement, obtained a rule on plaintiff to file one. It was made absolute, but plaintiff did not comply with it. The Light company then obtained a rule to show cause why judgment of non pros. as to it should not be entered; the rule was directed to the plaintiff and the other two defendants. The defendants answered by denying authority to enter such a judgment in favor of the Light company “for the reason that they should be permitted to offer evidence showing liability on the part of said [Light company] at the trial of the cause,” at which time they expected to prove that the pole mentioned in the statement of claim was owned and used by the Light company or its predecessor in title.[*] The judgment of non pros. was granted
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and the owner appealed. Compare Schwartz v. Jaffe, 324 Pa. 324, 331, 188 A. 295.
The decision below turned on the sufficiency of plaintiff’s averment of negligence; we all think it is sufficient to put in issue the liability of the Light company to the plaintiff. She averred that at noon, March 17, 1934, while walking on the sidewalk “her left foot caught in the depression” with serious resulting injury; that the depression was “about seven inches in diameter and twelve inches deep” located about “six inches west of the curb line . . . about two feet south of” a particular point definitely specified. She alleged that this depression had been maintained by the defendants for “a long time” and that they had neglected to repair it. Her statement also contained three paragraphs at the end, two of which related to the Light company. “18. All of these matters are likewise the result of the negligence and carelessness of the Pennsylvania Power and Light Company in that it removed its pole at the aforementioned point a long time prior to the happening of the grievances herein complained of and failed to fill up properly the hole left as the result of the removal of said pole. 19. These matters are likewise the result of the negligence and carelessness of the Pennsylvania Power and Light Company in permitting the depression resulting from the removal of their pole to exist in the sidewalk for a long period of time.”
The Light company contends that plaintiff should have stated how long the depression existed and what its connection with the place was and approximately when it removed the pole and “in what manner or particular [the Light company] failed to fill up properly the hole left as the result of the alleged removal of said pole.”
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In the circumstances we think the rule for judgment of non pros. should have been discharged.
Judgment reversed and the record is remitted for further proceedings.