Gift v. City of Reading

• Decision Date: 18 January 1897
• Docket Number: 135-1896
• Citation: 3 Pa.Super. 359
• Parties: Elizabeth L. Gift v. City of Reading, Appellant
• Court: Pennsylvania Superior Court

3 Pa.Super. 359

Elizabeth L. Gift v. City of Reading, Appellant

No. 135-1896

Superior Court of Pennsylvania

January 18, 1897

Argued November 13, 1896 [SYLLABUS MATTER]

Appeal by defendant, from judgment of C. P., Berks Co.-1894, No. 44 on verdict for plaintiff.

Trespass for injuries arising from negligent construction of a sewer. Before Ermentrout, P. J.

The facts sufficiently appear in the opinion of the Superior Court.

Verdict for plaintiff for $ 775. Defendant appealed.

Errors assigned, inter alia, were:

In charging the jury as follows:

" There does not seem to be any dispute that there was a natural water course draining that section. It is also admitted that the city built a sewer across that water course. The plaintiff alleges that this sewer was built directly across the water course and interfered, obstructed and diverted the water from its accustomed channel, and causing it to spread over the property of the plaintiff, injuring both the real estate and the contents of the house. Now, if the city did build a sewer over the natural water course in such a way as to actually interfere, obstruct, and divert the water, so that instead of going down and off in its accustomed channel, it was clogged up and then drained upon this property, causing a damage, then the city did a wrong to the property owner for which the city should be held liable.

" The city, however, says that it did not build the sewer in that way. It says it planted this sewer underneath the bed of the water course in such a way that the water course was not diverted. If you believe that the building of the sewer did not obstruct the water course, then there can be no recovery."

In charging the jury as follows:

" If you should find however, under the facts of the case, that this sewer was actually so built as to divert the course of the water, and cause it to accumulate, and then to be drained upon this property, then, as I said before, the injury would be done, and there can be a recovery, unless there was some act on the part of the plaintiff which contributed to bring about this result. If that act was by damming up the drain on her property, then there would be a contribution. She denies it, and I know of no witness in this case who actually says she did anything to this ditch. The facts are, however, for the jury."

In rejecting the following evidence:

S. S. Hoff sworn:

" Q. So that if property owners had not filled up the ditch at the Cullen corner, the water would still have gone over the surface of Spring street into this ditch and down over to Windsor street, would it not?"

Mr. Schroeder: Objected to as not proper cross-examination.

By the Court: Objection sustained. Exception for defendant.

The court erred in rejecting the following testimony:

S. S. Hoff sworn:

By Mr. Stevens:"

Q. So that the water coming down Spring street would, notwithstanding the fact that you have raised Spring street to this grade, have entirely been discharged through this water course?"

Mr. Schroeder: Objected to as not proper cross-examination.

By the Court: Objection sustained. Exception for defendant.

In admitting testimony as follows: Alfred W. Gift, being on the stand, plaintiff made the following offer:

Mr. Schroeder: Plaintiff proposes to show that they have a small baby, and that this child was one year old at the time of this overflow, and that the mother was obliged to get out of the house during some of these floods, and that they were interfered with in the comfortable enjoyment and occupancy of their building by reason of these floods.

Mr. Stevens: Objected to, because the narr does not allege any injury of that kind.

By the Court: We will allow the question. Exception for defendant.

In admitting plaintiff's testimony, under objection, to prove the market value of the premises before the flooding and after the flooding; admission of evidence of Dr. Brackbill as to the sanitary condition of the premises; rejection of evidence offered for the purpose of showing the condition of the house after the flooding and the actual injury done, and putting an estimate in dollars and cents on the injury done to the house; in rejecting evidence as to the condition of the furniture.

William Kerper Stevens, city solicitor, for appellant. -- The facts in this case bring it under the decision of Fair v. Phila., 88 Pa. 309. The case presented by the plaintiff is that of Collins v. Phila., 93 Pa. 272.

The true rule as to the measure of damages is stated in Lentz v. Carnegie, 145 Pa. 612.

The same question was considered in the Supreme Court in Eshleman v. Martic Township, 152 Pa. 68.

George F. Hagenman and D. E. Schroeder, for appellee. -- Appellee's damages at the trial below was for injury and destruction to her real estate and personal property. The evidence related to both, and the jury returned their verdict in one gross sum. How can the sum be ascertained and divided, a portion for the realty and a portion for the personalty? Phila. v. Linnard, 97 Pa. 242.

The true measure of damages is the difference between the market value of the land as affected by the taking of it for public use and such value as unaffected thereby: Boham v. Avoca Borough, 154 Pa. 404.

The evidence tended to prove the facts on which the plaintiff's case was predicated, and by its affirmance plaintiff's case was fairly presented to the jury: Frederick v. Lansdale Borough, 156 Pa. 613.

Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.

OPINION

SMITH, J.

The plaintiff, in her declaration, avers that she is the owner of a two story brick dwelling house situate on the north side of Windsor street in the city of Reading; that prior to the year 1889 a natural water course drained all surface waters without overflowing her land; and that in 1889 the city authorities built a sewer, which was inadequate to drain the watershed, and at the same time filled up the natural water course, whereby the water overflowed her premises several times, damaged the dwelling and its contents, and diminished the market value of the property. This suit was brought to recover for the injuries thus suffered.

On the trial, the plaintiff's right to recover was restricted practically, to injuries caused by the obstruction of the natural water course and the consequent diversion of the water to and upon her premises, and the jury were told that no recovery could be had for any injury caused by the insufficient size or capacity of the new sewer. The obstructions complained of were twofold: (1) the new sewer, which it is alleged was so placed as to obstruct the passage of the water where it had been accustomed to flow, and (2) the filling up of the natural water course at a point on Spring street north of the plaintiff's land, which, it is alleged, caused the water to overflow her lot. It was also contended, on the argument, that the evidence showed that a plan known as Bassett's System had been adopted by councils for the sewerage of the whole city, and that if it had been carried out in a methodical manner, with due regard to the changes and the passage of the water as contemplated by the new plan, other parts of the system would have been first built, and the greater part of the water diverted to the plaintiff's lot would have been carried off in other directions, as intended, through the enlarged system; and that the defendant was therefore negligent in not constructing the sewer so as to avoid overtaxing the part built near the plaintiff's land. But this view was not declared upon nor submitted to the jury for their consideration, and there is nothing in the record to warrant the assumption that it entered into the basis of their finding. It was admitted that neither the whole system nor the part which it was alleged would relieve the Nicolls street sewer had been built at the time of the injuries complained of, nor at the time of the trial in the court below. On the question of damages, the learned trial judge...