Silver Costume Co. v. Passant

• Decision Date: 03 March 1919
• Docket Number: 122-1918
• Citation: 71 Pa.Super. 252
• Parties: Silver Costume Co. v. Passant, Appellant
• Court: Pennsylvania Superior Court

71 Pa.Super. 252

Silver Costume Co. v. Passant, Appellant

No. 122-1918

Superior Court of Pennsylvania

March 3, 1919

Argued October 11, 1918

Appeal by defendant, from judgment of Municipal Court of Philadelphia-1917, No. 513, for plaintiff in case of Benjamin L. Silver, trading as Silver Costume Co. v. J. Edward Passant, trading as The Passant Company.

Trespass to recover injury to stock. Before Cassidy, J., without a jury.

The facts are stated in the opinion of the Superior Court.

The court found for the plaintiff and entered judgment in favor of the plaintiff and against defendant for $ 425. Defendant appealed.

Errors assigned were various rulings on evidence; for refusal to grant a new trial, and for dismissing motion for judgment n o. v.

Affirmed.

William Charles Brown, and with him Cornelius Haggarty, Jr., for appellant, cited: Oil Co. v. Torpedo Co., 190 Pa 350; Livingstone v. Pbg. Rys. Co., 64 Pa.Super. 593; P.R. R. Co. v. Books, 57 Pa. 339; Matteson v N.Y. C. R. R. Co., 218 Pa. 527.

Albert L. Moise, for appellee, cited: Warren v. Kauffman, 2 Philadelphia 259; Shafer v. Lacock, 168 Pa. 497; Fisher v. Ruch, 12 Pa.Super. 240; Levinson v. Myers, 24 Pa.Super. 481; Killion v. Power, 51 Pa. 429.

Before Orlady, P. J., Porter, Henderson, Trexler and Williams, JJ.

OPINION

TREXLER, J.

The plaintiff occupied the third floor of a building on Sansom street, Philadelphia, and the defendant with another tenant had possession of the fifth floor. On a Monday morning between five and eight o'clock the stock of the plaintiff was damaged by water coming through the ceiling and upon investigation it was found that a spigot on the fifth floor had been left open and the water overflowing caused the damage. The son of the defendant had been on the fifth floor on Sunday and had worked there. No one else had been there except that the night watchman had gone through the building.

There are cases where a fair presumption or inference of negligence arises from the circumstances under which the injury occurred: Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497. Thus in Warren v. Kauffman, 2 Phila. 259, the Supreme Court held that " if a man has a hydrant on his premises and the water runs from it and through his floor into the story beneath him, and injures the occupant there, ipso facto negligence is prima facia made out, and he is responsible for the injury unless he can show that it happened some other way" : See McCoy v. Ohio Valley Gas Co., 213 Pa. 367; Fisher v. Ruch, 12 Pa.Super. 240; Levinson v. Myers, 24 Pa.Super. 481; Killion v. Power, 51 Pa. 429. The last two cases are very similar as to facts with the one before us.

The defendant contends that as there is evidence that there was another tenant who had a right to occupy the fifth floor, defendant's occupancy was not exclusive and therefore he cannot alone be held liable. There would be force in this objection were it not that the testimony showed that his employee was the only person exercising control of the premises during the time that the injury was occasioned. Certainly there was no liability on the other party by reason of the act of defendant's employee. Had the accident arisen from conditions for which both tenants were responsible a different aspect would be presented.

A witness of the plaintiff testified that defendant's son who was also his foreman, a short time after the overflow was discovered, told him that he had worked on the premises on Sunday, that he had opened the spigot in order to wash...