Eisenbrey v. Penna. Co.

Citations

• 141 Pa. 566
• 21 A. 639

Syllabus

<p>[To be reported.]</p> <p>(а) A testatrix directed that a dwelling, at a certain valuation, should be deemed a part of the one third of her residuary estate, the income whereof she gave to her sister for life. Her executors were directed to permit the sister to occupy the dwelling until it should be sold, she paying the taxes and making repairs.</p> <p>(б) The sister was permitted to occupy the house; and, during her occupancy, upon a public street in front of it a fence was erected enclosing the front steps and having a door therein, extending When wide open ten inches beyond the limit within which obstructions were permitted by a city ordinance:</p> <p>1. The executor, being a mere trustee not in the occupancy of the property even by a tenant, and exercising no control over it, was not responsible for the act of erecting the fence, and therefore was not liable in damages for an injury to a passer-by, caused by the sudden opening of the door against him.</p> <p>2. Moreover, even if the fence itself was a nuisance, the proximate cause of the injury was not the existence of the fence, but the sudden throwing open of the door; and as this was not done by the executor, or by any agent or servant in the latter’s employ, there was no room for the application of the doctrine of respondeat superior: Kies v. Erie City, 135 Pa. 144.</p>