Cairns v. Chester City

• Decision Date: 07 October 1907
• Docket Number: 204-1906
• Citation: 34 Pa.Super. 51
• Parties: Cairns v. Chester City, Appellant
• Court: Pennsylvania Superior Court

34 Pa.Super. 51

Cairns v. Chester City, Appellant

No. 204-1906

Superior Court of Pennsylvania

October 7, 1907

Argued November 22, 1906 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C. P., Delaware Co.-1903, No. 136, on verdict for plaintiff in case of Andrew Cairns v. The City of Chester.

Trespass to recover damages for injuries to a dwelling house alleged to have been caused by the flooding of the cellar of the house by water from a sewer. Before Johnson, P. J.

The court charged in part as follows:

It appears that the plaintiff lives on Second street, in the city of Chester, at the corner of Ward and Second, and owns two small brick houses, stores; some time about 1888 or along there he built the first of these houses; in 1891 he built the other; and that prior to that time the city of Chester had constructed a sewer on Second street which ran from his place westward to Townsend street and down Townsend street to the Delaware river. He connected his house or cellar with this sewer on Second street by means of a pipe leading from the cellar (six-inch pipe I believe) to the sewer, and in that pipe he left a hole in the cellar, three inches across. His complaint is that by reason of the negligent maintenance of that sewer the water backed into his cellar through the pipe -- through this hole, and injured his house, injured the walls of the house, so that it cracked, and depreciated its value by lowering the rent in the one house that he rented, and by preventing his using the cellar in the other. That is his claim. Now, the first question we shall submit to you is, whether or not in the construction of this pipe leading from the cellar to the sewer; whether in its reasonable and proper construction that hole should have been left in the pipe?

If you shall find that that was not necessary in its reasonable and proper construction and that he would have suffered no damage if that hole had not been there, that is the end of the plaintiff's case and he cannot recover, and your verdict will be for the defendant; and in passing upon that question we do not intend to restrict you to any particular witness. You have heard the plumbers. You have heard those who are familiar with the uses to which that hole was to be put, and if you shall find from all the evidence that in the reasonable and proper construction that was not necessary and that he would have suffered no damage if that hole had not been left there, then you shall find for the defendant, because, in the court's view, that being found in the city of Chester's favor he cannot recover.

But if you pass that question and find from all the testimony in the case that in the reasonable and proper construction that hole was properly there, and that through it the water came and it injured his property, then pass to the next question. If you shall find that the water which flowed into the plaintiff's premises was because of the inflow of the tide, of the water from the Delaware river, and find that this sewer was in proper order and condition, or, in other words, find that the dirt or mud which was in the bottom of it in no way affected that flow, then your verdict must be for the defendant, for in the court's view of the case, that if the flow of the water into his cellar came from the tides, caused wholly and entirely by the tides, and was not affected in any way by reason of this earth or dirt in the sewer, then your verdict must be for the defendant, and you need go no further, but if you find from the evidence that that was not the cause of it then you will pass to the next question.

The claim of the plaintiff is, and the only claim in which we think he can maintain his suit, that this injury to the plaintiff, to his buildings, was caused by the failure of the city of Chester to keep the dirt cleaned out of this sewer, and the theory of the plaintiff is that this injury was caused by the filling up of the sewer opposite his place so that when the water during a rain, ordinary rain storm, flowed into the sewer that the sewer was so nearly filled up with the water, filled up passed the aperture where he joined on to the drain pipe, and flowed the water back into his cellar. If you shall find from all the evidence in the case that that was the cause of it, and that that cause was by the failure of the city of Chester to keep this sewer cleaned out (because it was the duty of the city to maintain it in good order for the purpose for which it was to be used), if that was the cause of this flow of water into his cellar -- if you find that it was, then pass to the next question. What will compensate him for the injury? [Now, he is entitled, if you find that he was damaged by reason of the neglect of the city of Chester, that is, the failure to maintain this sewer in a proper condition -- if you find that he was injured by that or his property was, then we will instruct you that he was entitled to recover, first, whatever he may have lost by the depreciation of the rent in the one house, and whatever the depreciation was for the loss of the cellar in the other, because there was no rent from that.

Now, upon this question of rent. We do not intend to intimate what it should be. You have heard the witnesses -- the difference between what it would have brought if it had been in the condition it would have been if the sewer had not been there, and the condition that it was made by the sewer, if it was changed and whatever that difference is this plaintiff will be entitled to recover from July 17, 1897, until to-day. Now, there is some dispute about the (as you will notice) depreciation caused by this cellar being wet -- some contradiction of the testimony about the amount of rent he did receive some time in 1897. Take all the testimony, and he will be entitled to receive whatever that difference will be.]

[Then it is also claimed that the building has been damaged; that the water in the cellar undermined in some way or another the walls of the building, and that they settled and cracked the front of the building fronting on Second street, one of the buildings. I am not sure whether both or not.

Mr. Geary: I think he said both buildings.

The Court: He claims that by reason of the water in the cellar that it undermined or affected the foundations of the buildings and that the walls settled and cracked the front of his building, and he claims to be compensated for that. Now, the evidence upon that point is very contradictory. And you will pass upon that question. First, whether or not there was any settling of the walls, and, if so, did they cause this crack in the building? Whatever will be necessary to compensate him for the damage done to that building, he is entitled to it.]

Defendant presented these points:

2. If the injury to plaintiff's property resulted from water from the sewer backing on to or flooding it through or by reason of the connection from it to his property, the city is not liable and your verdict should be for the defendant. Answer: We answer that if the injury resulted entirely from the action of the tides, and the sewer was properly maintained, this point is affirmed. In other words, if this sewer was properly maintained and this injury to the plaintiff arose entirely from the tides, than the plaintiff cannot recover, and your verdict must be for the defendant.

3. If the plaintiff's cellars were flooded from the sewer through the connection prior to six years before suit brought, the same was notice to him, and he thereafter retained the connection at his own risk, and the verdict must be for the defendant. Answer: That is refused. We cannot say to you that because he did not bring his suit as soon as he discovered it that he is not entitled to recover. The fact, if it be a fact, that he did not bring this suit for ten or twelve years after he had noticed it you may take into consideration in passing upon the question whether or not he has been damaged and whether he has been damaged in the way he says he has.

4. Neither the borough of South Chester nor the city of Chester, the municipalities wherein the plaintiff's property has been located since they were constructed in 1888 and 1891, required or compelled the said plaintiff to connect his cellar with the said sewer, or to maintain said connection; the said connection was, therefore, permissive only, and at the risk of the said plaintiff. Answer: Much of that we might affirm, but we cannot say that it was at the risk of the plaintiff. Therefore, it is refused.

5. The connection from the plaintiff's cellar to the sewer was permissive only, and the said cellar having been flooded prior to six years before the institution of this suit and as such flooding was sufficient notice to the plaintiff that his property was likely to be injured if he still maintained it, his maintenance of it thereafter was at his own risk, and the defendant is not responsible or liable for any damages that happened after such first flooding. Answer: That is refused.

7. The only damages the plaintiff is entitled to recover in this case, if he is entitled to recover any, are the cost of closing the connection or opening from his cellar through to the pipe that led into the sewer, the cost of a vent box at the curb, and possibly the cost of cementing the cellar of the house on the corner, and any other incidental and necessary expenses arising and growing out of the closing of said connection and hole. Answer: That is refused.

8. Under all evidence the verdict should be for the defendant. Answer: The eighth point is refused, too.

Verdict and judgment for plaintiff for $ 813.20. Defendant appealed.

Errors assigned were above instructions,...