Smith v. Machesney

Citations

• 238 Pa. 538
• 86 A. 493
• 1913 Pa. LEXIS 1005

Syllabus

<p>Negligence — Real property — Obstruction in footway — Question for jury — Parties—Husband and wife — Wife’s sepa/rate property— Judgments — Modification of judgment — Act June 8, 1898, P. L. SU-</p> <p>1. In an action against the owner of real estate for personal injuries alleged to have been caused by an obstruction upon the sidewalk in front of defendant’s property, the question of defendant’s negligence is for the jury where it appears that the plaintiff had stumbled over the edge of a freight elevator which was operated from the cellar beneath defendant’s building up through the sidewalk; that the top of the elevator, which was intended to seat into a framework flush with the sidewalk, was out of order, so that it projected above, leaving a space of about three inches, in which the plaintiff’s foot was caught; and that the elevator had been permitted to remain for some time in this condition, of which defendant’s employees had knowledge.</p> <p>2. In such a case plaintiff cannot be convicted of contributory negligence as a matter of law because she passed along the sidewalk where she knew the elevator was located at a time when there were coal wagons standing in front of yhe building, and knew that coal was being put in or ashes taken out, where it does not further appear that she knew the elevator was not properly in position.</p> <p>3. In such a case it is error to join husband and wife as joint tort feasors where the liability for which recovery is sought is based entirely upon the wife’s ownership of the property and the neglect of duty charged was that of her employees, no claim being made against the husband as an actual tort feasor.</p> <p>4. Where in such a case a judgment has been obtained against both defendants after a trial in which there was no error as to the wife, the Supreme Court may affirm the judgment as to her and reverse it as to the husband.</p>