Riegel & Co., Inc. v. City of Philadelphia
| Decision Date | 15 April 1929 |
| Docket Number | 331 |
| Citation | 145 A. 837,296 Pa. 256 |
| Parties | Riegel & Co., Inc., v. Philadelphia, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 30, 1929
Appeal, No. 331, Jan. T., 1928, by defendant, from judgment of C.P. No. 1, Phila. Co., Sept. T., 1926, No. 1, on verdict for plaintiff, in case of Riegel & Co., Inc., v Philadelphia. Affirmed.
Trespass for injuries caused by bursting of water main. Before McDEVITT, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $17,128.79. Defendant appealed.
Errors assigned were various rulings and instructions, quoting record.
The judgment is affirmed.
James Francis Ryan, with him G. Coe Farrier, Assistant City Solicitor, and Augustus Trask Ashton, City Solicitor, for appellant. -- The testimony as to prior leaks which did no damage to plaintiff is not admissible unless it is properly connected with the bursting of the large main by testimony which would show notice to the city of a defect in the main or of a danger to the main.
The evidence does not show negligence on the part of defendant in that no notice is shown of conditions which would naturally result in the break of the main or that would cause those having knowledge and experience in the matter to anticipate that there would be a break in the main and the city did everything reasonably required of it under the circumstances Morgan v. Boro., 29 Pa.Super. 100; Abraham v. Yardum, 64 Pa.Super. 225.
Leon J. Obermayer of Edmonds, Obermayer & Rebmann, with him J. Warren Brock and David F. Maxwell, for appellee. -- The lower court properly denied defendant's motion to strike out all testimony relating to the leakage of water prior to the break in the large main: Zimmer v. Phila., 57 Pa.Super. 20; Schwindt v. Water Co., 33 Pa.Super. 23; Hartman v. Gas Co., 210 Pa. 19; Rumsey v. Phila., 171 Pa. 63.
The lower court properly submitted the case to the jury, and denied defendant's motion for judgment n.o.v. because there was evidence that the break in the main was the result of defendant's negligence in the inspection, repair, maintenance, and construction of the main: Rumsey v. Phila., 171 Pa. 63; Ottersbach v. Phila., 161 Pa. 111; Heh v. Gas Co., 201 Pa. 443; Morgan v. Boro., 29 Pa.Super. 100; Koelsch v. Phila., 152 Pa. 355.
The lower court committed no reversible error in permitting plaintiff's expert, on rebuttal, to testify that water flowing under the main would cause the main to settle unevenly and to rupture at its weakest point.
Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
The thirty-six inch express water main of the City of Philadelphia laid by it under the surface of Seventh Street burst about three o'clock in the morning of September 3, 1926, and poured great quantities of water into the cellar of a building occupied by plaintiff, damaging a stock of paper goods which it had stored therein. This action was brought to recover compensation for the loss and resulted in a verdict in its favor for $17,128.79, upon which judgment was entered. Defendant thereupon took this appeal, contending that plaintiff has not shown a state of facts which under the law entitled it to recover.
The city's first and main position is that there is no proof of any notice to it of any flow of water from the main prior to its bursting or of anything in connection with it, such as depressions in the street surface or a sinking thereof, which would convey information to it that there was anything the matter with the main, and that the testimony which was received as to previous leaks in the street not shown to have come from the main in question was improperly admitted and should have been stricken from the record.
The second position assumed by the city is that even with the testimony as to prior leakage in the street upon the record, when it showed by uncontradicted testimony that the supports upon which the burst pipe rested, the remainder of the broken section and the earth beneath it were not disturbed and had not sunk and that the supports were still in alignment and that the pipe was capable of withstanding its internal pressure without external support, an expert witness called by plaintiff who had not seen the pipe should not have been permitted, after defendant had finished its evidence, to testify over objection that water running under the pipe would cause the surrounding earth to wash away and the pipe to sink and settle so that it would break.
The city's third position is closely related to its first and is in substance that it is not responsible if a large express water main bursts without other warning than the existence of several small leaks from other pipes (whether from other pipes or the main itself is the critical inquiry in the case) in the immediate vicinity where there is no subsidence of surface and nothing to indicate anything wrong with the main and the break is proved to have been an instantaneous and complete rupture not preceded by any certainly established leakage from the main.
We will not treat each of these propositions separately for the reason that they run into and dovetail with each other and can be best and most satisfactorily covered by a discussion of the case at large, wherein a comprehensive picture of the whole controversy and all the facts and inferences arising therefrom can be made to appear. The following is the way the case was laid before us on oral argument, where on both sides the presentation was able and complete:
The portion of the main in front of plaintiff's building had been laid during July and August, 1925. In the early part of January, 1926, after it had been in use for a few months, and eight months before it burst, water began to escape into the basement of a building diagonally across the street from the one occupied by plaintiff. The engineer of the building immediately notified defendant's water department of the leakage and that in his opinion it was from the new main. The flow of water finally caused him to install a steam syphon in the basement of the building to syphon it out onto the street. No water had leaked into the basement before January, 1926, and none after the break in the pipe which we are considering had been repaired.
Four or five months prior to September 3, 1926, when the main broke, water from the street in amount equivalent to the flow from an ordinary hydrant began to escape into the basement of the premises next to those of plaintiff. The city was notified of this condition in March or April by telephone and by letter. In August the volume of water began to increase and the occupant of the building notified the city that the leak was increasing and that in his opinion it was becoming dangerous and that he believed it was from the main and called upon the city to send some one to look into the matter. The leak continued to grow in volume until the main burst. After it was repaired, the water ceased to escape into this building; none had run into it before the main was put in use.
About August 20, 1926, water from the street began to run into plaintiff's building and continued to do so in increasing amounts until the main burst. The flow was sufficient to fill a pit six feet square by ten or twelve feet deep twice a day. The city was notified of the conditions daily from the time the leak began on August 20th until the main burst. The attorney for the owners of the building on ...
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