Smith v. Bell Tel. Co. of Pa.

• Decision Date: 02 July 1959
• Citation: 153 A.2d 477,397 Pa. 134
• Parties: David SMITH and Henrietta Smith, Appellants, v. BELL TELEPHONE COMPANY OF PENNSYLVANIA and Counties Contracting and Construction Company.
• Court: Pennsylvania Supreme Court

Page 477

153 A.2d 477

397 Pa. 134

David SMITH and Henrietta Smith, Appellants, v. BELL TELEPHONE COMPANY OF PENNSYLVANIA and Counties Contracting and Construction Company.

Supreme Court of Pennsylvania.

July 2, 1959.

Concurring Opinion July 24, 1959.

Rehearing Denied Aug. 17, 1959.

Jack Brian, Berman, Richard & Brian, Howard, Richard, Upper Darby, for appellants.

Edward H. Bryant, Jr., Lutz, Fronefield, Warner & Bryant, Media, for appellees.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN and McBRIDE, JJ.

McBRIDE, Justice.

This case is here on plaintiff's appeal from the refusal of the court below to take off a compulsory non-suit.

In 1948 defendant, Counties Contracting and Construction Company, under contract to defendant, Bell Telephone Company of Pennsylvania, constructed an underground conduit to carry telephone lines along Baltimore Avenue in Lansdowne, Pennsylvania. In 1950, after an inspection which revealed no structural or other defects, plaintiff purchased a house on Baltimore Avenue. Sometime prior to March 25, 1951, he discovered seepage in his basement, which proved to be sewage backed up from the sewer lateral running from his home to the street. He made efforts several times that summer with varying degrees of success, to find the cause and cure the trouble. These efforts continued from time to time until September 1956, when, in desperation, plaintiff and a friend tunnelled under the sidewalk, found that the telephone conduit had crushed the sewer lateral and was blocking it. Plaintiff brought suit September 19, 1957 and, after presenting evidence, met with a compulsory non-suit which the court later refused to take off. The refusal was based on two grounds:

(1) That plaintiff had not made out a prima facie case, and (2) that the action was barred by the statute of limitations.

In support of the judgment of non-suit the court below applied the standard that where plaintiff's case is based on circumstantial evidence and inferences to be drawn therefrom, such evidence must be so conclusive as to exclude any other reasonable inference inconsistent therewith, and that plaintiff did not produce such evidence. Indeed, he did not, but did he have to?

A variety of formulae for determining the sufficiency of circumstantial evidence to sustain a verdict may be found, including: 'such as to satisfy reasonable and well balanced minds'. Connor v. Hawk, 1957, 387 Pa. 480, 483, 128 A.2d 566; Rowles v. Evanuik, 1944, 350 Pa. 64, 68, 38 A.2d 255; Ferry v. Philadelphia Rapid Transit Co., 1911, 232 Pa. 403, 406, 81 A. 426. '[The facts and inferences] must so preponderate in favor of the basic proposition he is seeking to establish as to exclude any equally well-supported belief in any inconsistent proposition', Wagner v. Somerset County Memorial Park, 1953, 372 Pa. 338, 342, 93 A.2d 440, 442; Polk v. Steel Workers Organizing Committee, 1949, 360 Pa. 631, 634, 62 A.2d 850. Although some of the formulations appear to be mutually inconsistent, they have sometimes been used together. See Stauffer v. Railway Express Agency, 1946, 355 Pa. 24, 47 A.2d 817. The formula that 'the circumstances must be so strong as to preclude the possibility of injury in any other way other way and provide as the only reasonable inference the conclusion plaintiff advances' is not a correct statement of the rule to be applied by the judge on deciding a motion for either a non-suit or binding instructions. If that were the rule what would be the province of the jury? In no case where there was more than one reasonable inference would the jury be permitted to decide. Insofar as this rule is stated in our cases it is disapproved. ¹

We have said many times that the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but that there must be evidence upon which logically its conclusion may be based. Schofield v. King, 1957, 388 Pa. 132, 136, 130 A.2d 93; Connor v. Hawk, 1957, 387 Pa. 480, 482, 128 A.2d 566; Ebersole v. Beistline, 1951, 368 Pa. 12, 16, 82 A.2d 11. Clearly this does not mean that the jury may not draw inferences based upon all the evidence and the jurors' own knowledge and experiences, for that is, of course, the very heart of the jury's function. It means only that the evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by plaintiff, and not that that conclusion must be the only one which logically can be reached.

It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability. The judge cannot say as a matter of law which are facts and which are not unless they are admitted or the evidence is inherently incredible. Also, it is beyond the power of the court to say whether two or more reasonable inferences are 'equal'. True enough the trial judge has to do something like this in deciding a motion for new trial based on the weight of the evidence but no such rule governs him in deciding whether a case is submissible to the jury. The facts are for the jury in any case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant. It is the duty of plaintiff to produce substantial evidence which, if believed, warrants the verdict he seeks. The right of a litigant to have the jury pass upon the facts is not to be foreclosed just because the judge believes that a reasonable man might properly find either way. A substantial part of the right to trial by jury is taken away when judges withdraw close cases from the jury. Therefore, when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith. This rule has been applied in substance in many cases. See Miller v. Hickey, 368 Pa. 317, 81 A.2d 910; Rockey v. Ernest, 367 Pa. 538, 541, 80 A.2d 783; Turek v. Pennsylvania R. Co., 361 Pa. 512, 64 A.2d 779; Randolph v. Campbell, 360 Pa. 453, 62 A.2d 60.

To the court below it seems that all plaintiff had proved was 'the happening of an accident', and that the best that could be said for plaintiff's case was that 'the collapse of the conduit may have been the consequence of defendant's negligence.' It would seem however, that plaintiff has proved more than that; enough more, in fact, that he should have been permitted to have the jury pass upon the problem. We are not here faced with a case relying on circumstantial evidence to show both the happening of the accident and the defendants' negligence. It is clear that the injury was caused by the conduit crushing the sewer lateral. The question is, did defendants' negligence cause the conduit so to behave?

Plaintiff showed, mainly by defendants' own employees, that the usual method of installing conduits, which sas employed here, is to excavate a trench across all the properties on the route along which the line is to be laid, a practice which quite naturally disturbs the earth and frequently exposes gas, water and sewer lines. Where there is danger that the heavy conduit (about 210 pounds per three foot section) might press upon such lines, supporting piers are to be constructed on either side of the line to bear the weight of the conduit. Where soil conditions are normal such piers are constructed if the clearance above the line is less than six inches. Whether the piers are to be so-called dry wall (of brick without mortar) or of some more substantial material such as poured concrete depends upon the solidity of the surrounding earth. Again, by testimony of defendants' employees as well as his own, he showed there was no evidence of piers having been placed under the conduit. Defendant makes much of the fact that plaintiffs' attorney did not ask plaintiff if he had removed piers from the excavation. In view of the fact that plaintiff testified he had carefully 'cleared away' the earth and, when asked what he had found, described the condition of the conduit and sewer lateral fully with no mention of piers, such a question would have been unnecessary and purposeless. It is of perhaps greater significance that defendants' attorney did not ask that question on cross-examination.

Plaintiff has farily shown that defendants buried a heavy conduit over his sewer lateral, and that after about three years the conduit crushed the lateral. It is hard to see how a plaintiff in these circumstances could prove more.

A likely inference under the conditions described is that the soil was normal and the crushing of the pipe was due to defendants' negligence in not supporting a conduit which passed over plaintiff's lateral with less than six inches clearance. It is also possible, as defendants suggest, though perhaps not as likely, that the clearance was adequate for normal conditions or that piers were installed and that the mischief resulted from abnormal soil conditions, or from subterranean waters. The difficulty with that hypothesis for defendants is that it too presents a strong probability of negligence since it seems unlikely that soil conditions could have changed very much in what was apparently an established community in the short space of three years or less. If the condition of the soil at the time of installation of the conduit was subnormal, defendants were bound to support their conduit accordingly, and not to proceed on the basis of ideal or average soil conditions. To suggest that the collapse which broke the sewer lateral occurred through...