203 Pa. 516 | Pa. | 1902
Opinion by
This is an action of trespass brought by the plaintiff against defendant to recover damages occasioned by backwater on his mill property situate on Catawissa creek in Columbia county. Plaintiff’s property was 2,000 feet up stream from where defendant’s railway bridge crossed the same stream. In March, 1893, an ice gorge lodged against the piers of the bridge, which had the effect of damming back the water to plaintiff’s mill dam and partially destroying it; he alleged the bridge was unskillfully and negligently constructed, in that the piers were not properly set to meet the current of the stream in time of spring floods, and further, that they were not far enough apart to afford passage to floating ice at break-ups in spring freshets. The defendant alleged that the bridge was constructed according to the best engineering skill, to meet any ordinary or probable demand upon it, in view of the size of the stream and the watershed contributory to it. That this was the whole duty demanded of it, and having performed this, it was guilty of no negligence which would support plaintiff’s action.
At the close of plaintiff’s evidence, the learned judge of the court below, being of opinion, that plaintiff had failed to make out a case warranting a verdict, directed a nonsuit. This he afterwards, on motion, refused to take off, and we have this appeal by plaintiff. The reason given by the court for directing a nonsuit is that the bridge, whether negligently or skillfully constructed, was the act of an independent contractor, and that for his act under the authority of Painter v. Pittsburg, 46 Pa. 221, he alone was answerable to third parties. This ruling may have been correct; in our examination of the evidence it does not appear clearly to be so. But however this may be, if for any other reason the evidence failed to show negligence on the part of defendant, plaintiff’s case must fail, and the decree should be affirmed. The bridge is 182 feet between the abutments; it has three piers with cutwater points; the stream at the bridge and for some distance above it is about fifty feet wide; deduct
What was the defendant’s duty in the design and construction of this bridge ? The fact that the ice gorged at the bridge and backed the water on plaintiff’s property, does not of itself fix upon defendant the charge of negligence; plaintiff must go further, and show, that defendant did not construct the bridge with proper care and skill, having regard to the landowners above and below. The case of Pittsburg, etc., Railway Co. v. Gilleland, 56 Pa. 445, a case of alleged negligence in the construction of a culvert, lays down a rule which satisfies both law and reason; we said in that case:
“If the culvert was so unskillfully and negligently constructed as to be insufficient to vent the ordinary high water of the stream, the railroad company building it would have been liable for the injury thereby caused. The apparent facts indicated the duty. The stream, though small, must find a vent or overflow the adjacent land and undermine the railroad. The size, the character of its channel, and the declivity of the circumadjacent territory which forms the watershed, indicated the probable quantity of water to pass through. Proper engineering skill should observe these circumstances and supply the means of avoiding the injury which would result from locking up the natural flow, or obstructing its passage so as to cause a reflux in times of ordinary high water. Beyond this, prudent circumspection cannot be expected to look, and there is, therefore, no liability for extraordinary floods.” This rule was followed in Baltimore & Ohio Railroad Co. v. Sulphur Spring Independent School District, 96 Pa. 65, and Brown v. Pine Creek Railway Co., 183 Pa. 38.
As a nonsuit was directed on plaintiff’s evidence, no witnesses were called by defendant to prove the character of or adaptability of the bridge to the purpose of its construction; the presumption is, that it was skillfully and carefully constructed ; the burden was on the plaintiff to rebut the presumption. We said in Pittsburg, etc., Railroad Co. v. Gazzam, 32
They were not bound to extraordinary prevision; the most competent engineer was not bound to see what was unseeable; he was only bound to foresee and provide for the volume and destructiveness of the ordinary flood and the ordinary force and bulk of floating ice. On plaintiff’s own evidence, this duty defendant performed. While we do not concur in the reason for the nonsuit given by the learned judge of the court below, we do concur in this decree for the reason given by us. Therefore the judgment is affirmed.