3 Pa. Super. 359 | Pa. Super. Ct. | 1897
Opinion by
The plaintiff, in her declaration, avers that she is the owner of a two story brick dwelling house situate on the north side of Windsor street in the city of Reading; that prior to the year 1889 a natural water course drained all surface waters without overflowing her land; and that in 1889 the city authorities built a sewer, which was inadequate to drain the watershed, and at the same time filled up the natural water course, whereby the water overflowed her premises several times, damaged the dwelling and its contents, and diminished the market value of the property. This suit was brought to recover for the injuries thus suffered.
On the trial, the plaintiff’s right to recover was restricted, practically, to injuries caused by the obstruction of the natural water course and the consequent diversion of the water to and
The evidence, with the map of the district, shows that the sewer complained of crosses the water way at Spring street at nearly right angles, and three feet below its bed, but does not follow the bed of the water course or occupy any part of it between Spring and Olqy streets. So that, under the facts it is not the case of the conversion of an old water course into an artificial sewer, as in Collins v. Philadelphia, 98 Pa. 272; nor was the iniury necessarily caused by the inadequacy of the
The liability of the city is denied because (1) it had a right to adopt and construct a system of drainage for the city, and the inadequacy of the sewer on Nicolls street to take all the water from Spring street was an error of judgment; and (2) the old water way was filled up by abutting lot owners and not by the city; and also that the flooding of plaintiff’s property on August 23, 1891, was due to an extraordinary fall of rain.
It must be conceded that the power of a municipal corporation to construct sewers is discretionary and in its nature judicial, and that no civil liability is incurred for failure to perform it; nor for errors of judgment in its exercise, such as selecting plans, locations, etc., although the sewers constructed pursuant thereto prove inadequate. But the work of construction in accordance with adopted plans is purely ministerial; it must, therefore, like all ministerial duties, be performed in a skillful and careful manner; and the municipality is liable for injuries caused by its negligent performance: 24 Am. & Eng. Ency. of Law, 946, where numerous authorities are cited.
While a city has absolute power over its streets, its control of them must be exercised with a due regard for the rights of abutting property owners. If, as alleged by the plaintiff here, water which formerly flowed north of her property along Spring
Of course the ground of the defendant’s liability is negligence ; want of care in the discharge of its ministerial duties, through which the property of others is injured. If in this case there was no negligence on the part of the city authorities, in obstructing or diverting from its natural channel the water that caused the injury; or if there was no such channel; or if the water which flooded the plaintiff’s house was the ordinary surface water, not cast there by any wrongful act of the city; or if it was from an extraordinary flood; or if it was driven there because of the inadequacy of the sewer constructed by the city; or by reason of the natural passage way being filled up or blocked by any person other than the city authorities; or if the plaintiff by any act of hers contributed to the cause of the injuries ; there would be no liability on the part of the defendant.
The witness S. S. Hoff having testified in chief that by filling up on Spring street, at its intersection with Nicolls, the ditch was cut off and any excess of water not entering the sewer, would flow down Nicolls street, it was error to exclude, on cross-examination, the question made the subject of the seventh assignment. The defendant had a right to show by the witness, if it could, that notwithstanding that filling, the water coming down Spring street would be discharged through the water course. This assignment is sustained.
The question upon which the sixth assignment is based assumed as facts matters not touched upon by the witness in his examination in chief; it was rightly excluded as not proper on cross-examination.
A physician called on behalf of the plaintiff testified that the house was in a bad sanitary condition, detrimental to health, and that it would breed disease. But he did not say that during the four years referred to anjr disease or sickness was caused by its alleged unsanitary condition. On the other hand it appears from the plaintiff’s own testimony that she and her family continued to reside in the house, and were obliged to vacate the premises only for a short time in 1891, and then by reason of the overflow. When asked by the defendant’s counsel as to the sanitary condition of the house and its effect on the health of herself and family, her attorney’s objection to the question was sustained. It is quite reasonable to presume that her counsel would not have objected to this question if she had been able to show that any member of her household had been made ill or was at all affected by the unhealthful condition of the house. We thus have the fact refuting the theory. It was error to admit this testimony of the physician, but having been admitted, it was unfair to the defendant to exclude the question'to the plaintiff on the same subject. It
The offers of testimony set out in the twentieth and twenty-first assignments were pertinent to the issue and material, and the testimony should have been admitted.
The plaintiff claimed damages for alleged permanent injuries to both the real and personal property, and gave evidence in support of her claim. If the injuries were of a permanent nature their presence and character would to some extent at least be visible at the time of the trial, and their lasting effect could be estimated at that time with some degree of certainty. The testimony of the witness Beard was admissible to meet the allegations of the plaintiff as to permanent injury to the property, to describe its general condition at that time, and to show how it was affected by the floods, as distinguished from wear by use during the preceding four years. Its effect was for the jury.
For the reasons given the judgment is reversed and a venire facias de novo is awarded.