Boehm v. Borough of Bethlehem

• Decision Date: 12 April 1897
• Docket Number: 179-1896
• Citation: 4 Pa.Super. 385
• Parties: Henry Boehm v. The Borough of Bethlehem, Appellant
• Court: Pennsylvania Superior Court

4 Pa.Super. 385

Henry Boehm v. The Borough of Bethlehem, Appellant

No. 179-1896

Superior Court of Pennsylvania

April 12, 1897

Argued December 10, 1896 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C. P. Northampton Co.-1894 No. 32, on verdict for plaintiff.

Trespass for damages resulting from defective sewer. Before Scott, J.

The plaintiff claimed for damages to his property by reason of an overflow from a city sewer resulting from the flooding of same, superinduced from obstructions negligently permitted to remain therein. The theory of the defense was that the flooding was the result of a cloud burst or unprecedented storm.

Verdict and judgment for plaintiff for $ 269.79. Defendant appealed.

Errors assigned among others were refusal of binding instructions in favor of defendant; answer to defendant's third point, which point and answer were as follows: " 3. In order for plaintiff to recover at all, he must satisfy the jury by the weight of the evidence, that the defendant was negligent, and that defendant's negligence was the proximate cause of the injury. If the jury believe from the evidence that the flooding of defendant's property was occasioned by the water backing up the alleged alleyway from the Union street culvert, thereby preventing the water from Goepp street sewer from flowing off fast enough, and that this backing up of the water was because of the emptying into the Union street culvert of the water pouring down into it from the Union street sewer and from the gutter running down the northern side of Union street into said culvert, retarding the flow of the water through said Union street culvert, then the intervening and independent cause of the injuries was the said connecting sewer of Union street which was a mistake of judgment on the part of the borough officials, and the borough defendant, therefore, would not be liable for damages in this suit. Answer: Denied as stated. The point eliminates all conditions of proof relative to obstructions in the Union street culvert, which may or may not be found to have been negligently permitted to remain and which may or may not have prevented the free escape of waters from the sewer after it was backed up, and thus have contributed to any injury; " answer to defendant's fourth point, which point and answer were as follows: " 4. If the testimony in this case shows that the injuries suffered may have come from the alleged negligent maintenance of the alleged alleyway and also may have come from the state of affairs mentioned in defendant's third point, either of which may have been the proximate cause of the injuries, it devolved upon the plaintiff to prove by a preponderance of the evidence that the cause for which the defendant was liable was culpable and the proximate cause. Answer: Denied as stated. If two distinct causes are operating at the same time to produce a given result which might be produced by either, they are concurrent causes. When they are successive and unrelated in their operation, one of them must be proximate and the other the remote cause (Herr v. Lebanon, 149 Pa. 222). The conditions stated in the third point, to which this is referred, are insufficient to maintain the proposition here presented, viz: that for one of these concurrent causes, the defendant might not be liable; in affirming plaintiff's second point, which point and answer were as follows: " 2. The municipal authorities are liable for the damages occasioned by an open obstruction in the outlet of a sewer after a reasonable time has elapsed for its ascertainment and removal." Answer: " Affirmed by adding the qualification that such obstruction has existed so long that by the exercise of reasonable care in the inspection of the highways, it ought to have been discovered; " error in leaving to the jury the question whether or not the storm of September 8, which was complained of, was such an unprecedented storm as to count it an act of God in its result; in charging the jury as follows: " There is no testimony in dollars and cents, gentlemen of the jury, submitted by the plaintiff that would enable you to estimate in figures by a mere arithmetical calculation what damages the plaintiff suffered by any of these storms; it is not necessary; it would be impossible to calculate such damages, perhaps, arithmetically; there might be some evidence that would direct your attention more specifically to the matter; but it is such as is within ordinary observation and experience when based upon what evidence is presented; " in failing to charge and instruct the jury in reference to the contributory negligence of the plaintiff; in failing to instruct the jury as to the proper measure of damages; in charging the jury as follows: " It seems to me, although the matter of damages is entirely a question for you, gentlemen of the jury, and you are not bound by my opinion, that there is no very considerable damage proven to the owner of the property in consequence of the storms of May 28 and July 1, but the amount is to be measured by you."

Harry C. Cope, for appellant. -- When facts have not been shown, from which negligence may reasonably be inferred, they should not be submitted to a jury to infer, arbitrarily and without evidence, that there was negligence: Goshorn v. Smith, 92 Pa. 435; Reese v. Clark, 146 Pa. 465.

When an injury may have come from either one of two causes, either of which may have been the sole proximate cause, it devolves on the plaintiff to prove by a preponderance of the evidence that the cause for which the defendant was liable was culpable and the proximate cause: 16 Am. & Eng. Ency. of Law, 445.

When the act of God is of " such an overwhelming and destructive character, as by its own force, and independently of the particular negligence alleged or shown, produced the injury, there would be no liability, though there were some negligence in the maintenance of the particular structure:" Balt. & Ohio R. R. Co. v. Sch. Dist. 96 Pa. 62.

When the facts are admitted or so clearly and conclusively proved as to admit of no reasonable doubt, it is the duty of the court to declare the law applicable to them: Fisher v. Railway Co., 131 Pa. 292: Selser v. Roberts, 105 Pa. 245; Pitts., etc., Railway Co. v. Lyon, 123 Pa. 140.

Where actual pecuniary damages are sought, some evidence must be given showing their existence and extent. If that is not done, the jury cannot indulge in an arbitrary estimate of their own: Baker v. Manhattan R. Co., 118 N.Y. 533 Sedgwick on Damages, Chap. 2, p. 47; Jones on Neg. of Munic. Corp. sec. 250; Lentz v. Choteau, 42 Pa. 438; 1 Sutherland on Damages, sec. 437; ...