Cairns v. Chester City, 34 Pa. Super. 51

Cairns v. Chester City

34 Pa. Super. 51 | Pa. | 1907

Opinion by

Head, J.,

Unless the learned trial court erred in declining to hold, as matter of law, that the plaintiff was guilty of contributory negligence, there is no just ground for criticism of the manner in which that question was submitted to the jury. If the existence of such negligence could be fairly inferred from any fact or facts developed in the testimony, such inference must have rested on the theory (a) that the plaintiff had no legal right to connect his premises with the sewer, leaving an opening in the connection to drain his cellar and vent waste water therefrom ; or (b) that, conceding his right to the use of the sewer, he had constructed or maintained his connection in an unusual, .unskillful and negligent manner, and thus caused, in whole or in part, the injury of which he complained. But in urging the adoption of either of these theories the defendant is confronted with testimony sufficient, if believed by the jury, to establish the following facts. The sewer was built by the borough and part, at least, of the cost assessed on the abutting properties, including the plaintiff’s. The defendant then, by general ordinance, authorized its use by property owners, regulated the manner of such use and, in consideration of the payment of a license fee, issued formal permits to citizens desiring to connect with the sewer. The plaintiff paid his fee and received his license. There was nothing in the ordinance or license prohibiting any use to which the plaintiff has subjected the sewer. The system of drainage adopted wasMesigned and *59constructed by a plumber and was not different in plan or workmanship from those in current use by other citizens. If, as we say, the jury accepted the evidence tending to establish these facts, it ought to be clear enough that this case is substantially different from Dasher v. Harrisburg, 20 Pa. Superior Ct. 79, cited and relied on by the learned counsel for appellant. In that case, “ the plaintiff’s predecessor in title had connected the premises owned by the plaintiff with the sewer in violation of city ordinances which required the consent of the city authorities to be first obtained, the payment of a fee for the privilege of connecting, and that the construction shall be done under the supervision of the city engineer.” We note in the printed argument 'for the appellant the following statement: “ In this case it was shown that there was no ordinance or resolution of council of the borough of South Chester providing for the authorizing of or permitting property owners to connect with public sewers”’ We must regard this as an error into which counsel inadvertently was led because we find in the record, “ An ordinance relating’ to the streets, to tap for either sewer or water,” approved October 8, 1888, in which it is provided that, “all property owners of the said borough who tap the water pipe or sewer will be required to have the street put in as good condition as they found it in six dciys,” etc. Another ordinance approved October 13, 1890, provided, inter alia, “ any person desiring to make sewer connections (on Second street) shall pay to the street commissioner a sum equal to one dollar per square yard for the pavement desired to' be removed,” etc. No ordinance on this subject older than the one first quoted seems to have been offered in evidence, although the record shows that a sewer license No. 77, was issued on September 16, 1887, to the plaintiff’s contractor for which a fee of $1.50 was paid.

But beyond all this, it was shown by evidence, practically undisputed, that for several years after the plaintiff’s premises were connected with the sewer, the work of drainage went on undistlirbed, leaving his cellar dry and easily cleaned. From this a jury might fairly infer that the proximate cause of the floodings and consequent damage, which later began to happen, was not any fault in either the design or the workmanship of the plaintiff’s connection, but should be looked for elsewhere. *60Upon such a state of facts we are unable to point to any rule of law or fixed standard of legal duty, imposed by statute or declared by judicial decision, of which the plaintiff’s conduct could be clearly said to be a violation. This being so the court could not have rightfully declared, as matter of law, that plaintiff had been guilty of contributory negligence and the submission of that question to the jury, in a proper charge, left the appellant without just cause for complaint.

Whilst the construction of public sewers, to promote the health and comfort of the citizens, is a municipal function for the exercise of which ample powers have been given to our cities and boroughs, yet it has ever been held that the time when and the conditions under which such powers should be exercised are questions to be determined exclusively by the municipality itself. It follows that the citizen can have no cause of action against his local government because it has not provided a sewer to carry off surplus water, sewage, etc., the presence of which is detrimental to his property. But it is equally clear that having, in the exercise of its rightful powers, constructed a public sewer, the municipality assumes the duty of maintaining it in a reasonable state of efficiency, so that the public moneys expended in its construction may not be wasted, and what was designed for a public benefit be permitted to lapse into an injurious or dangerous nuisance. A failure to discharge that duty is an act of negligence and will subject the municipality to an action for damages by a citizen whose property has been injured by reason of such failure. The many cases declaring this principle are so well known they need not be cited here.

It was on precisely such an alleged breach of duty that the present plaintiff planted his right to recover. To sustain his claim he showed the facts already adverted to as to the construction of the sewer, his connection with it and the good service it rendered for a considerable period of time. That later the water began to back into his cellar ; that these occurrences became more and more frequent; that he repeatedly gave notice to the borough authorities without obtaining any relief and that finally, it appeared, that the sewer had been allowed to become so choked with sand and dirt that its volume and efficiency were greatly diminished thereby. Upon this state of facts he *61asked the jury to find that his damages were the result of the failure of the borough to perforin its legal duty in maintaining the sewer in proper condition. The facts being established by the verdict, unless some intervening and adequate cause for the injury were shown, the conclusion reached by the jury could not be said to be either unreasonable or unwarranted.

The defendant stoutly contended before the jury that it had found such a cause in the action of the tides in the Delaware river into which the sewer emptied. Much testimony was produced to support this contention. But there was also evidence tending to show that only under infrequent weather conditions, when heavy rain storins and unusual tides happened at the same time, did damage come to the plaintiff from such causes. Besides, during the years when there was no trouble and no injury, these natural forces were operating under the same laws that later controlled their action. The jury might, therefore, decline to accept the defendant’s claim that the damage suffered by the plaintiff was wrought by an act of God rather than a breach of duty by the municipality. The learned trial court carefully instructed the jury that no person could be held responsible for injury suffered by the action of the tides or forces not under the control of man, and no fault can be found, from the standpoint of the defendant, with the charge in this respect.

There remains to be considered the assignments which attack the correctness of the charge as to the measure of damages. The verdict having established, after a fair submission of the questions, that the defendant was negligent in permitting its sewer to become choked with sand and dirt; that this negligence was the cause of the injury complained of and that the plaintiff was free from contributory negligence, what was the proper measure of the latter’s recovery? Undoubtedly compensation, or in other words the restoration of his property to its former condition — if it could be so restored for less than its value — plus the money lost by him by reason of his inability to use and occupy it during the period of injuty as shown by the pleadings and evidence. The learned trial court, as we understand his charge, instructed the jury that the cost of repairing cracks in the wall, washed-out mortar joints, etc., if injured by the negligence of the defendant within six years, would measure the damage to the building; whilst the loss of rental value *62attributable to the same cause, would fairly measure the damage to the plaintiff’s right of use and occupation. _ As there was testimony tending to prove both kinds of injury, viz.: temporary, destroying or diminishing the use value; permanent, affecting the structure itself, we are unable to see in what other way compensation could have been brought about. Had the cellar been occupied by a tenant, he could have maintained an action for the one injury, the owner for the other. That the owner was also the occupier ought not to change the measure of the defendant’s liability. The rule thus laid down we regard as in entire harmony with the principles announced in Eshleman v. Martic Township, 152 Pa. 68; Elder v. Lykens Valley Coal Co., 157 Pa. 490, and kindred cases cited by appellant. Nor can we accept the doctrine, so earnestly urged by appellant, that because the injury began more than six years before the bringing of this action, and because the plaintiff did not then find and adopt some means of stopping it, even if that involved the closing of his cellar vent and the cutting out of his rain spouts, he must now be regarded as the responsible author of his own injury. True, the defendant could have, by general ordinance, prescribed any fair and reasonable methods for com nee ting with the public sewer and forbidden its use in other ways. It did not do so. The manner of the plaintiff’s use has not been found to be unlawful, unusual or negligent. He may not at first have known the cause of his injury. He may have relied, as he had the right to rely, on the assumption that the negligence would cease. If from one or both these reasons he bore 1ns injury during some years for which he cannot recover by reason of the statute, we cannot discover, in this fact, any reason why he is now remediless. The assignments of error are all overruled.

Judgment affirmed.