Abraham v. Yardum

• Decision Date: 09 October 1916
• Docket Number: 122-1915
• Citation: 64 Pa.Super. 225
• Parties: Abraham, Appellant, v. Yardum
• Court: Pennsylvania Superior Court

64 Pa.Super. 225

Abraham, Appellant, v. Yardum

No. 122-1915

Superior Court of Pennsylvania

October 9, 1916

Argued April 21, 1915

Appeal by plaintiffs, from judgment of C.P. Allegheny Co.-1912, No 1638, on verdict for defendants in case of Emilie R. Abraham et al., Guardian of George W. Heer, et al., v. H. B. Yardum and Virginie H. Yardum, his wife.

Head J., dissents.

Trespass to recover damages for injuries to property from leakage from a water pipe. Before Davis, J.

The facts are stated in the opinion of the Superior Court.

The court gave binding instructions for defendants.

Verdict and judgment for defendants.

Error assigned was in giving binding instructions for defendants.

Affirmed.

J. Garfield Houston, for appellants. -- Even if the municipality did grant its consent to the defendants to lay a pipe in the street, yet the liability of individuals acting under such consent for private purposes, is not the same as that of the municipality when it uses the streets for public purposes: Gordon v. Ellenville, Etc., R. R. Co., 195 N.Y. 137.

A municipality may allow a private individual to use a public street for a private purpose, and such consent will prevent the act of the individual from being unlawful and a nuisance per se; yet such consent does not confer upon the individual the limited liability of the municipality when injury results from the act: Mairs v. Manhattan Real Estate Association, 89 N.Y. 498; Turner v. Degnon-McClean Contracting Company, 99 A.D. (N.Y.) 135.

The wrong committed by the defendants against the plaintiffs may be considered either as a trespass or as a nuisance: Hauck v. Pipe Line Co., 153 Pa. 366; Welliver v. Irondale Electric L., H. & P. Co., 38 Pa.Super. 26; McKnight v. Denny, 198 Pa. 323; Hay v. Cohoes, 2 N.Y. 159; Mairs v. Manhattan Real Est. Assn., 89 N.Y. 498; Wheeler v. Norton, 86 N.Y.S. 1095.

It is not necessary to show negligence to charge the defendants with nuisance.

The ruling cases in Pennsylvania are: Hauck v. Tidewater Pipe Line Co., 153 Pa. 366; Stokes v. P.R. R. Co., 214 Pa. 415; Welliver v. Irondale, Etc., Co., 38 Pa.Super. 26.

Edward G. Hartje, for appellees, cited: Fritsch v. Allegheny, 91 Pa. 226; The Penna. Co. v. Sanderson, 113 Pa. 126: Kibele v. Philadelphia, 105 Pa. 41; Koelsch v. Philadelphia Co., 152 Pa. 355; Rumsey v. Philadelphia, 171 Pa. 63.

Before Rice, P. J., Orlady, Head, Henderson and Trexler, JJ.

OPINION

Henderson, J.

The material facts out of which the plaintiff's action arises are not controverted. The defendants owned a lot abutting on St. Clair street in the City of Pittsburgh near the intersection of that street with Eva street. A former owner of the premises laid a pipe which was connected with the city water line on the latter street through which water was supplied to the plaintiffs' house and another house in the immediate vicinity. This service pipe extended from the city water line under the cartway of Eva street for about one hundred feet and thence into the premises now owned by the defendants. The plaintiffs owned property abutting on Eva street in front of which the defendants' water pipe was laid. Several years after the water pipe was placed a sewer was constructed for the joint use of plaintiffs and was connected with the city sewer under the cartway of Eva street. This sewer was about six feet under the water pipe which pipe was about four feet below the surface of the street. The street was paved with asphalt. In the winter of 1909 and 1910 water came through the sewer into the plaintiffs' cellars and efforts were made by them to locate the trouble. Finally they had the sewer opened up and found there was a leak in the lead pipe which supplied the defendants with water and that the water from this pipe had caused the earth to settle under the sewer or had washed a part of it away so that the sewer settled and broke at that place. Up to this time the plaintiffs did not know what the cause of the trouble was nor had the defendants knowledge that there was any defect in the water line or the sewer. As soon as the condition of the pipe was discovered the defendants caused the water supply to be cut off and a new service to be established from St. Clair street. The plaintiffs' action was brought to recover for damage caused by the failure of the defendants to properly repair and maintain the water line by reason of which failure and by reason of the negligence of the defendants in not properly maintaining and repairing and in permitting the water to flow from the pipe the plaintiffs were injured. The learned trial judge gave binding instructions for the defendants on the ground that there was no evidence of any want of care on the part of the defendants in relation to the water pipe and that they were not charged with any different degree of care from that resting on a municipality or water company supplying residents of the city with water. The evidence warrants the conclusion that the service pipe was placed in the street with municipal consent. It was in position for a considerable number of years and it was in what was apparently the most convenient location for the purpose. Such use of the street with the consent of the municipal authorities was a lawful one: Wood v. McGrath, 150 Pa. 451. The position taken by the plaintiffs is that as soon as the leak occurred in the pipe a nuisance was created and that the backing of the water through the sewer had the effect to make the defendants trespassers and therefore liable for all of the results of the leak in the pipe from the time it gave way in accordance with the broad principle announced in Rylands v. Fletcher, L. R. 3 H. L. 330. The effect of the application of this doctrine is to make even an innocent person bear the responsibility of an insurer. It is to be observed however that exceptions to the doctrine have been made as in Nichols v. Marsland, L. R. 10 Exch. 255, which was the case of the giving way of the embankment of a dam; and in Carstairs v. Taylor, L. R. 6 Exch. 217, where the cause of the injury was of such an inconsiderable character as to have been unexpected; and in Smith v. Fletcher, L. R. 7 Exch. 305, where in the exchequer chamber evidence was considered admissible to show that every reasonable precaution had been taken to guard against ordinary emergencies and that the acts of the defendants were done in the ordinary reasonable and proper mode of working a mine. Whether the rule in England be as stated in Rylands v. Fletcher, supra, or subject to exception owing to the circumstances an examination of the American cases makes it clear that it has not been generally accepted in this country. In Marshall v. Welwood, 38 N.J.L. 339, it was said of the English case that the fallacy in the process of argument by which the judgment was reached consists in this, that the rule mainly applicable to a class of cases to a great degree exceptional is amplified and extended into a general if not universal principle. In Garland v. Towne, 55 N.H. 55, Justice Ladd referring to Rylands v. Fletcher, said: " I am not aware that any court this side of the Atlantic has gone so far as this." In Losee v. Buchanan, 51 N.Y. 476, the court declared that the law laid down in Rylands v. Fletcher is in direct conflict with the law as settled in this country. And the law was stated to be that if one bring water upon his premises into a reservoir in case the banks of the reservoir give way and the lands of a neighbor are thus flooded he is not liable for the damage without proof of some fault or negligence on his part. To the same effect are Livingston v. Adams, 8 Cowen 175, and Tapman v. Curtis, 5 Vt. 371. The rule declared in Rylands v. Fletcher has not been followed in this State. On the contrary, the Supreme Court expressed its unwillingness to recognize the arbitrary and absolute rule of responsibility which that case established to the full extent at least to which its general statement would necessarily lead in Penna. Co. v. Sanderson.

The better rule was there held to be that those who engage in an undertaking attended with risks to their neighbors are answerable for the conduct of the undertaking with diligence proportioned to the apparent risk and the illustration is given of one who places a steam boiler on his premises and operates the same with care and skill so that there is no nuisance in which case in the absence of proof of fault or negligence upon his part he is not liable for damage to his neighbor occasioned by the explosion of his boiler. The same principle was applied in Tourtellot v. Rosebrook, 11 Met. 460, which was an action to recover damages caused by a fire communicated to the plaintiff's land from a coal pit which the defendant lawfully set on fire on his own land. It was there held that the burden was on the plaintiff to prove negligence. There are numerous cases in this State which hold on the same principle that the mere fact of the escape of water or gas or steam from a pipe or boiler does not create a prima facie liability and cast on the owner of the pipe or boiler the burden of proof. Kibele v. Philadelphia, 105 Pa. 41, was a case of an explosion of illuminating gas which escaped from a defective pipe and the important question was whether the municipality acting through its officials failed to exercise such care and diligence in ascertaining the nuisance and removing it prior to the plaintiff's injury as their duty required. Koelsch v. Philadelphia Co., 152 Pa. 355, was a case of the escape of natural gas which accumulated in the cellar of the plaintiff's house and was disposed of on evidence of negligence. In Rumsey v. Philadelphia, 171 Pa. 63, there was a leak in the water pipe and the principal question submitted to the jury...