95 Pa. Super. 62 | Pa. Super. Ct. | 1928
Argued October 24, 1928. This is a suit for damages to a building and the contents thereof located at 117-19-21 North Seventh Street, Philadelphia, caused, as alleged, by the bursting of defendant's thirty inch water main laid under the surface of Seventh Street and in front of plaintiff's property. At the trial a non-suit was entered and this appeal is from the refusal by the court below to take it off.
Assuming the truth of plaintiff's evidence and giving it the benefit of every inference fairly deducible therefrom, it appears that in June, 1926, water which came from some pipe in defendant's system began to leak into the premises adjoining the plaintiff's, and notice thereof was given to the city. The city's inspectors made an investigation by digging up the pavement in front of that property and elsewhere. They found a small pipe leaking and repaired it, but the water continued to seep in. On or about August 20, 1926, there was a small leakage of water into plaintiff's cellar. The plaintiff notified the Water Bureau and its inspectors made an investigation for the purpose of finding the cause of the leakage. They found a small leak and fixed it, but the water continued to run into plaintiff's cellar causing two or three inches of water to accumulate each night on the boiler room floor. On the morning of September 3, 1926, the high pressure main broke, causing a flood which damaged plaintiff's property. After it was repaired the leakage into plaintiff's cellar stopped. The fact of plaintiff's injury and its extent is not in dispute, the controversy being with regard to the sufficiency of its evidence to take the case to the jury. There was no testimony as to the character of this break in the main and no proof that there was any connection between it and the prior leakage. The latter is not set up as a cause of action, and no damage is claimed on account of it. *65
The mere fact that water from the ruptured main injured the plaintiff's property did not create a prima facie liability. Defendant's liability depends upon whether or not it was negligent. That negligence may consist of faulty construction of the main or failure to make a reasonably careful inspection from time to time, or failure to repair after actual or constructive notice of a defective condition: Morgan v. DuQuesne,
The judgment is affirmed.