Brown v. White

• Decision Date: 21 April 1902
• Docket Number: 286
• Citation: 51 A. 962,202 Pa. 297
• Parties: Brown v. White, Appellant
• Court: Pennsylvania Supreme Court

51 A. 962

202 Pa. 297

Brown v. White, Appellant

No. 286

Supreme Court of Pennsylvania

April 21, 1902

Argued March 11, 1902

Appeal, No. 286, Jan. T., 1901, by defendant, from judgment of C.P. Franklin Co., April T., 1900, No. 393, on verdict for plaintiff in case of Annie Brown v. Hiram M. White. Reversed.

Trespass to recover damages for personal injuries. Before JOHN STEWART, P.J.

At the trial it appeared that plaintiff was injured on December 30 1899, about six o'clock in the morning by falling on ice which had formed on the pavement of premises owned by defendant, and rented by him to other parties. When John P Snider, a witness for defendant, was on the stand, the following offer was made:

It appearing from the evidence in this case that the defendant Hiram M. White, became the owner of the premises in front of which it is alleged this accident occurred, on April 1, 1898, we propose to show by this witness and others that the lot purchased by Mr. White on April 1, 1898, as well as the lot immediately on the north of him, owned by Mrs. Effie O. Gilbert, drained towards the street and through this archway, that at the time Mr. White became the owner of the lot in question the natural drainage from the lots of both properties was carried through the archway between the two houses.

We propose to show further than that, that the drippings from these hydrants, the drainage water from the roofs of both these houses, was carried through this archway on to the pavement, and that about April 1, 1899, the defendant, Hiram M. White, turned all the drainage of the surface water to the south side of his premises, so that nothing of that kind was carried through the arch; that at the time of the accident the only water which could or did drain from his premises into this archway, was from an inch and a quarter pipe, testified to by the plaintiff's witnesses.

We propose to show further that at the very time of the accident all the surface water from the property on the north, it being the Gilbert property, was carried into this archway and discharged out over the pavement in front of the premises.

This to be followed by testimony that the condition of things, so far as the defendant, White, is concerned, is the usual and generally existing condition of things maintained by property owners in this town.

Mr. Sharpe: This offer is objected to as being entirely irrelevant and immaterial, because the defendant not proposing to show by the offer that the drainage from the rear part of the Gilbert lot contributed in any degree to the ice which formed on the pavement and upon which the plaintiff fell, the conditions of affairs as it existed prior to April 1, 1899, and whether the defendant did or did not reduce the amount of water flowing through the archway, would not affect the liability of the defendant in this case.

As for that portion of the offer by which the defendant proposes to show that throughout the borough surface drainage is carried in the manner shown here, over the sidewalks of the town, this is entirely irrelevant, because if other persons committed nuisances it would not affect in any way the right of the plaintiff in this case to recover in this action.

The Court: The defendant may show the conditions as they existed upon the defendant's premises at the time the accident is alleged to have occurred. It is not competent for him to show the conditions existing prior to that time for purposes of comparison.

With respect to his offer of evidence which is to follow this present offer, we will meet that in a distinct offer.

Objection sustained, evidence excluded. Bill sealed for defendant. [1]

We propose to show by this witness and others that all over this town hydrants and drain pipes are used for conducting water on to the pavements and that water is conducted across the pavements to the gutters in a manner similar to this, through uncovered gutters. We propose to show further that that is the ordinary way of conducting the water from the roofs through spouts over the pavement.

Mr. Sharpe: This offer is objected to as being irrelevant and immaterial.

1. Because the defendant cannot, by the evidence which it is proposed to offer, affect the plaintiff's right to recover in this action.

2. The evidence is objected to as being incompetent, because the fact that generally property holders in the borough conduct water from their lots and houses in a negligent and careless manner over the sidewalks, would not relieve the defendant from any liability in this action.

The Court: Objections sustained. Evidence excluded. Bill sealed for defendant. [2]

It being alleged by the plaintiff in the testimony offered that the accident was the result of ice being formed on the sidewalk of the property adjoining the property of the defendant, from water which flowed from the drain pipe on the premises of the defendant, we propose to show by this witness and others, that it is usual, customary and necessary for the convenience, use and enjoyment of dwelling houses in the borough of Chambersburg, to run water from drain pipes for domestic purposes such as this from hydrants and from roofs, over the pavements in the same manner as this was done, through uncovered gutters. This has been the custom with reference to drain pipes since the erection of the waterworks in this town in 1876, or about that time. It has been the custom to run water from roofs through spouts over the pavement through uncovered gutters from a time whereof no witness can remember to the contrary.

This is to be followed by evidence that this drain pipe was constructed in a proper and workmanlike manner.

To be followed further by evidence that this defendant was not the occupant of the premises at the time of the accident, and never was the occupant of the premises, and that he neither had notice or knowledge of any accumulation of the ice on his premises at a time prior to the accident.

Mr. Sharpe: This offer is objected to, because testimony as to what is usual and customary is not relevant to this issue. Even if other property owners in the borough of Chambersburg have been accustomed to allow and maintain their gutters in an unsafe and negligent manner, that fact cannot avail as a matter of defense in the present action.

2. The offer is generally irrelevant and immaterial. As to the last portion of the offer the objection is made that any express notice to this defendant of any accumulation of ice at the mouth of the archway is unnecessary, because the evidence offered by the plaintiff reveals the fact that the ordinary use of the drain pipes by the tenants occupying the second story of the defendant's building would probably, during times of freezing weather, cause a dangerous accumulation of ice on the sidewalk near the entrance to the archway.

The Court: Objections sustained. Evidence excluded. Bill sealed for the defendant. [3]

We propose to prove by this witness and other witnesses, that for many years back, and from a time whereof there is no recollection to the contrary, it has been the general custom in the borough of Chambersburg to drain water from lots and roofs and waste pipes for domestic use in the houses of the borough, over and through uncovered surface drains across pavements, to the gutters, in the street, in the same manner as was done in the case on trial.

Mr. Sharpe: This is objected to because testimony as to what is usual and customary is not relevant to this issue. Even if other property owners in the borough of Chambersburg have been accustomed to keep their gutters and drains in an unsafe and negligent manner, such fact would not relieve the defendant from liability in this action.

2. The evidence is generally irrelevant and immaterial.

The Court: Objections sustained, evidence excluded. Bill sealed for the defendant. [4]

When Charles Beckley, a witness for defendant, was on the stand, the following offer was made:

It having been already shown in the testimony that this drain pipe was put in there about April 1, 1899, we propose to show by this witness that the accumulations of ice were there before this drain pipe was put there, during freezing weather.

Mr. Sharpe: The evidence is objected to as irrelevant and immaterial.

The Court: Objection sustained. Evidence excluded. Bill sealed for defendant. [5]

Mr. Gillan: We propose to prove by this witness that before this drain pipe was constructed, the conditions of things as to the ice, on the pavement and about the place where the accident is alleged to have occurred, were similar to those described by the witnesses for the plaintiff at the time the accident occurred, with respect to the ice. This to be followed by evidence that the drain pipe was at the time of the accident wholly disconnected with the waterworks of the house and that the condition of things with respect to the ice was the same after the drain pipe was no longer used as at the time of the accident, as has been described by witnesses for the plaintiff.

Mr. Sharpe: This offer is objected to as wholly irrelevant and immaterial.

The Court: Objection sustained. The evidence is excluded. Bill sealed for the defendant. [6]

We propose to prove by this witness and others that from a few days after the accident occurred and up to the present time, no water has ever passed down that drain pipe, and that no water has passed or could have passed from the premises of the defendant, and notwithstanding that fact, during freezing weather of the winter after the accident occurred and in the freezing weather of the winter of 1900 and 1901, there was constantly cakes of ice in that archway, from beginning to end, and out over the pavement.

Mr Sharpe: The evidence is objected to, inasmuch...