86 Pa. 297 | Pa. | 1878
delivered the opinion of the court,
Coming to the question of contributory negligence, it is equally plain that the openness of the wall above the apron had nothing to do with the defendant’s illegal act in casting the flowage of his roof against and into the wall. The wall was there before, and when the defendant pitched his roof against it his duty required him to protect the plaintiff against an act wholly his own. If the apron or barrier were insufficient to prevent the flow of the water through the wall into the plaintiff’s store, the injury was one for which the defendant was alone responsible. It is true, the openness of the wall above an insufficient apron would increase the damage done to the goods in the store, but it did not cause the roof to be built or the pitch to be given to it, which threw the rainfall from the roof into the wall, and it did not, therefore, contribute to the act which produced the injury. But for the water falling through the wall above, and not brought down by the defendant’s roof, the plaintiff alone was answerable, for the defendant had no part in causing it to flow there. Each cause of injury was independent of the other. Hence the instruction was proper to allow no damages for the water running into the store through the wall above, provided the apron or flushing was sufficient. True, it is difficult to apportion the damages arising from the insufficiency of the apron; but this cannot exempt the defendant from a positive injury done by casting the flowage of his roof into his neighbor’s store. The rain-fall through the wall above a sufficient apron or barrier did not contribute to produce this injury, though it did add to the damage sustained by the plaintiff’s goods. Hence it was the duty of the jury to apportion the loss according to the actual injury of the defendant, by separating it, as well as they could upon the evidence,, from the loss arising from the openness of the wall above a sufficient apron.
Upon the whole, we discover no error to correct.
Judgment affirmed.