Hayes Creek Country Club, Inc. v. Central Penn Quarry Stripping & Const. Co.
| Decision Date | 21 May 1962 |
| Citation | 407 Pa. 464,181 A.2d 301 |
| Parties | HAYES CREEK COUNTRY CLUB, INC. v. CENTRAL PENN QUARRY STRIPPING & CONSTRUCTION COMPANY, Appellant. |
| Court | Pennsylvania Supreme Court |
[Copyrighted Material Omitted]
John P. Thomas, Walker & Walker, Boyd H. Walker Allentown, for appellant.
Roger N. Nanovic, Jim Thorpe, Albert F. Maier, Freeland, for appellee.
Judgment affirmed on opinion of President Judge Campbell, specially presiding.
BELL, C. J., would reverse and enter judgment n. o. v. for defendant.
A jury trial in this case resulted in a verdict for the plaintiff.The defendant filed motions for judgment n. o. v. and a new trial.Defendant is asking for a judgment in its favor for the reason that the plaintiff has failed to show negligence on the part of the defendant and secondly that the plaintiff has failed to show that the defendant's negligence, if any, was the proximate cause of plaintiff's damages.On behalf of its motion for a new trial, defendant's arguments relate to the adequacy, competency, relevancy and admissibility of evidence and errors in the court's rulings and charge with respect thereto, and in the court's instructions to the jury.
The court is cognizant of the fact that in passing upon a motion for a new trial, a different rule applies from that employed in passing upon a motion for judgment n. o. v. In the latter the testimony must be read in the light most favorable to the verdict winner and all conflicts must be resolved in his favor.However, in the former this rule does not apply and the court must consider all of the competent evidence and determine whether or not the verdict was arbitary or capricious or that it was against the weight of the evidence or whether there was clear error of law or palpable abuse of discretion in the rulings of the court: Kuhns v. Brugger App.,390 Pa. 331, 135 A.2d 395, 68 A.L.R.2d 761;Sherman, App. v. Mfg. Light and Heat Co.,389 Pa. 61, 132 A.2d 255();Wilbert v. Pittsburgh Consolidated Coal Co., App.,385 Pa. 149, 122 A.2d 406;Ason v. Leonhart, App.,402 Pa. 312, 165 A.2d 625;Jemison v. Pfeifer, App.,397 Pa. 81, 152 A.2d 697.
Notwithstanding the differentiation of the duties of the trial court with respect to motions for a new trial and judgment n. o. v., and since the proof of negligence and proximate cause of plaintiff's damage are dependent upon the admissibility and competency of plaintiff's testimony, we shall consider both motions together.
Basically the facts involved are as follows:--The defendant had a contract for the construction of a large bridge across Hayes Creek in Kidder Township, Carbon County for the northeast extension of the Pennsylvania Turnpike.During the course of the construction work, the defendant corporation dug a channel in the bed of Hayes Creek and placed therein three pipes, two being 36 inches in diameter and one 32 inches in diameter, for the purpose of accommodating the flow of the stream.Plaintiff's witnesses claimed that only two pipes of similar capacity were installed.Above and over the pipes the defendant constructed a temporary road for the entire width of the creek channel, approximately 100 feet in length, to a height of 15 to 20 feet.One witness testified that the fill was 25 or 30 feet in height.The roadway, constructed of earth and rock fill, was approximately 14 feet in width at the top, 18 feet in width at the base, and was used to temporarily enable the contractor to pass from one side of the stream to the other during construction of the main highway bridge.In effect it constituted a dam across the stream vented by, at most, three culverts through the base to permit the escape or flow of the water of Hayes Creek.There was testimony, although refuted, that the defendant company made no investigation as to the normal or abnormal flow of Hayes Creek and as to whether or not the size and number of pipes were sufficient to accommodate the flow of the stream.Witnesses on behalf of the plaintiff testified that Hayes Creek was a mountain stream known to rise and fall rapidly as the result of heavy rainfall.It was subjected to flash floods at least three or four times a year, during which time the stream would rise substantially from its normal level.This condition was called to the attention of the defendant at the time of the construction in the stream bed and the defendant was warned that the pipes installed would not carry the water during one of the stream's flash floods.On August 18, 1955, a heavy rain, accompanying Hurricane Diane, fell in the Hayes Creek area.The temporary roadway constructed across Hayes Creek backed up a considerable volume of water, then broke out, and the obstruction was entirely washed away.Severe flooding damages to plaintiff's property along the stream below the temporary road resulted.The defendant's contention was that the pipes installed were sufficient in size to accommodate the foreseeable and expected flow of the stream and that the flooding condition was of such severity and intensity as to be termed an Act of God and the resulting damages were caused only therefrom and for which it could not be held responsible.
Before discussing the admissibility and competency of certain evidence, we feel required to discuss an important phase of this case, namely, the plaintiff's recovery is dependent to a great extent upon the validity and quality of circumstantial evidence.No one actually observed the breaking out and washing away of the roadway and its effect, if any, in causing the damage to plaintiff's property.What actually happened can only be proven or inferred from testimony offered by witnesses who are competent to testify to circumstantial facts.These circumstantial facts are as follows:--One of plaintiff's witnesses testified that at eight o'clock on the evening of August 18, 1955, he went down to and walked out upon the temporary roadway and the water at that time was within two feet of going over the top of the temporary roadway, that the water was backed up in the form of a lake as far as he could see.This same witness when he went back at eight o'clock the next morning, found that the whole roadway was gone and everything washed out.Another witness who owned a cabin near the stream and above the temporary roadway testified that when he examined his cottage three days after the roadway was washed out, the water, backed up by the obstruction, came up several inches above the window sill and was three feet above the first floor of his cottage.He further testified that the defendant cleared out a number of trees in the basin above the temporary roadway, neatly stacking the logs but allowing the limbs or slashing to be left strewn around the area, which was inundated.This last fact was corroborated by another of plaintiff's witnesses.Two witnesses testified that at approximately two o'clock in the morning of Augst 19 they heard a loud noise like rumbling or rolling of stones which continued for a few minutes' time.Two further witnesses who resided approximately three-quarters of a mile down stream from the temporary roadway and approximately 100 feet from Hayes Creek testified that they opened a wintergreen still near Hayes Creek and that when they tended to the still at eight o'clcok and eleven o'clock p. m. on August 18, the stream was two feet below the bank and that when they again went to tend the still between seven and eight o'clock on the next morning there were obvious indications that the water had risen eight to ten feet during the night, doing considerable damage to their wintergreen still by filling it with dirt and debris, and that the stream at that time was again down two feet below its bank.Another witness residing down stream testified that after hearing the rumbling noise he went out and witnessed the water to be within fifty feet of his house and in the morning the water was well down in the stream bed.An expert witness called on behalf of the plaintiff testified as to the time of rainfall and placed the time when the maximum water would be in the stream at the place where the temporary roadway was constructed at eight or nine o'clock in the evening of August 18, creating the inference that if the water had not been impounded by the temporary roadway the damage, if any, would have been caused to lower riparian properties at approximately that time.The expert witness made a computation of the amount of water impounded, basing it upon the height testified to by other witnesses, and determined the amount to be twelve million gallons.It is evident that the jury found from the circumstantial facts and the inferences therefrom that the defendant, in placing the fill in Hayes Creek channel, did not provide for an adequate water flow; that the construction was done in such manner as to create an obvious dam in case of heavy water flow; that in building the temporary roadway to such a height it impounded a great volume of water which would not have occurred if the roadway had only been constructed to a modest height above the culverts; and that the real damage was caused to plaintiff's property at around two o'clock a. m. which was several hours after the stream would normally have crested.
We need not cite cases for authority that negligence can be proven by circumstantial evidence.Our attention has been called to the recent case of Smith, App. v. Bell Tel. Co. of Pa.,397 Pa. 134, 153 A.2d 477, which we believe is a milestone in Pennsylvania jurisprudence regarding the sufficiency of circumstantial evidence.See21 Univ. of Pitts.L.Rev. 562.We believe this case to change and...
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