Carr et al. v. The Northern Liberties

• Decision Date: 01 January 1860
• Citation: 35 Pa. 324
• Parties: Carr et al. versus The Northern Liberties.
• Court: Pennsylvania Supreme Court

Page 324

35 Pa. 324

Carr et al. versus The Northern Liberties.

Supreme Court of Pennsylvania.

CERTIFICATE from the Court of Nisi Prius.

COPYRIGHT MATERIAL OMITTED

Rawle, for the plaintiffs in error.—By conferring upon the defendants the power to pave the streets, and drain them by the erection of culverts, or otherwise, the legislature imposed on them an obligation to perform those duties: Rex v. Barlow, 2 Salk. 609; S. C. Carth. 293; Mayor of New York v. Furze, 3 Hill 615; Mayor of Baltimore v. Marriott, 9 Maryland 160.

But even if the exercise of these powers was, in the first instance, optional, yet having elected to perform them, they must be held responsible for a complete and perfect execution: Mayor of New York v. Furze, 3 Hill 105. And an action on the case will lie against a municipal corporation for its negligence or unskilfulness, or for the negligence or unskilfulness of its agents or officers, in the execution of powers thus conferred upon them: Commissioners of Kensington v. Wood, 10 Barr 93; Pittsburgh City v. Grier, 10 Harris 68; Erie City v. Schwingle, Id. 385; Bayley v. Mayor of New York, 3 Hill 531; S. C. 2 Denio 450; Delmonico v. Mayor of New York, 1 Sandf. 222; City of Buffalo v. Holloway, 3 Seld. 493; Rochester White Lead Co. v. City of Rochester, 3 Comst. 463; Lacour v. Mayor of New York, 3 Duer 415; Mayor of Baltimore v. Marriott, 9 Maryland 160; City of Memphis v. Lasser, 9 Humph. 757; Thayer v. City of Boston, 19 Pick. 516; Ross v. City of Madison, 1 Carter 281; Rhodes v. City of Cincinnati, 10 Ohio 160; McComb v. Town Council of Akron, 15 Id. 480. And this is also the rule of the civil law: Domat, part 1, book 2, tit. 8, § 4.

King, for the defendants in error.—The cases cited by the plaintiffs in error only decide that a municipal corporation is liable for injuries occasioned by the negligence of its agents in the construction of a public work, or by a failure to repair the same. Here there was no evidence that this culvert had been unskilfully constructed, or that it was out of repair; on the contrary, the plaintiffs' witnesses proved that when it was originally constructed in 1830, it was sufficient to drain the neighbourhood. The sole ground of the action is, that in 1849 the culvert was not of sufficient capacity to carry off the water that accumulated at that point. If this were so, it matters not what were the number of inlets, for they could not have prevented the injury of an insufficient culvert.

In order to charge a corporation in an action for negligence in the performance of a public work, the law must have imposed a duty on it, so as to make the neglect culpable: Hickok v. Plattsburg, 15 Barb. 427. Here no duty was imposed, and it cannot be inferred from an authority to build culverts; and even its discretion was restrained by the 26th section of the act of incorporation, which limited its power of taxation to seventy-five cents in the $100: Keene v. Bristol, 2 Casey 46. And the summits which caused the surface water to flow towards the plaintiffs' property, were established under the Act of 17th April 1795 (3 Smith's Laws 224), long before the passage of the act incorporating the defendants.

The opinion of the court was delivered by LOWRIE, C. J.

The plaintiff had his house flooded by the water which fell in one of those heavy showers which occur during the summer, every few years, and he complains that his loss is chargeable to the faults of the municipal authorities, and that he is entitled to compensation from the corporation. On the trial he was nonsuited, on the ground that he had shown no such fault in the corporation officers, as entitled him to the compensation sued for. Was there such evidence?

Much of the testimony relied on consists of the mere opinion of witnesses who are evidently unlearned in the scientific principles of which they speak; who can have no pretensions to be experts; and whose opinions, therefore, are in some instances plainly unfounded, and in all instances unworthy of credit, because we have no evidence that they had any such experience or education as would entitle us to rely on them. For instance, when witnesses suppose that an acute angle in the culvert tended to obstruct the flow of water in the part below the angle; that the water in Cohocksink creek was backed up the culvert, and through the inlets into Fifth street, without flooding the streets from the creek up to Fourth street and above it; that a wingwall (tending to form an eddy at the mouth of the culvert, and turn off the stream of the creek) would have prevented the backing up of the creek; that, for want of air-holes, the flow of water in the culvert was obstructed by air; all this, and more that might be mentioned, is mere matter of opinion, and is entitled to no weight at all with a court and jury, unless it comes from persons who first give satisfactory evidence that they are possessed of such experience, skill, or science in such matters, as entitles their opinions to pass for scientific truth. All the testimony of this character must therefore go for nothing.

One witness gives us his calculation that rain, falling at the rate of an inch an hour on the territory drained through this sewer, would require a head of three feet, and an outlet of six feet diameter for its discharge; but neither he nor any one else tells us how much rain would fall per hour in such a shower, nor how much head there is between the pavement at the plaintiff's corner and the mouth of the sewer, either at high or at low water in the creek, nor what was the state of the creek; and therefore, even if we could rely on his calculation, he does not furnish us with sufficient facts for working out any conclusion....