Philadelphia v. Vare

Citations

• 245 Pa. 178
• 91 A. 234
• 1914 Pa. LEXIS 855

Syllabus

<p>Contracts — Assumpsit—Affidavit of defense — Sufficient averments.</p> <p>In an action by a municipality to recover the amount of a judgment obtained against it for negligence in permitting inflammable materials to be used in filling and grading a street, whereby fire was communicated to an adjoining property, where the statement of claim set forth a contract let by plaintiff to defendant for grading the street wherein defendant agreed “to be responsible for and pay all loss or damage to either person or property which may in any manner arise by reason of the prosecution of said work during the progress of the same,” and to “be responsible for any accident that may occur during the progress of or by reason of the work,” the court did not err in holding sufficient an affidavit of defense which alleged that the fire did not occur because of work done by defendant under his contract and was not caused by defendant’s negligence; that at the time of the fire the street was not in defendant’s exclusive possession, but that plaintiff had permitted its use as a public dump, and that inflammable matter had been placed thereon by other persons, and that the ground of the action in which a recovery had been had against plaintiff was in permitting inflammable rubbish to be placed on the street in close proximity to the property burned.</p>