Thе opinion of the court was delivered, October 30th 1871, by
We consider the principles involvеd in these assignments of error to have been authoritatively ruled in Carr v. The Northern Liberties, 11 Casеy 324, and unless that decision is to be overruled the judgment below must be affirmed. In that case a power was conferred by its charter upon a municipal corporation “ to build and erect from time to time, as might become necessary, sufficient close culverts in and over the common sewers established in the district.” The municipality did proceed to build culverts in exerсise of the power granted by the act of incorporation. The plaintiff alleged, and gave evidence tending to prove, that the culverts were not sufficient to carry off the water falling in a heavy rain; that in consequence his store had been overflowed, and his stock of goods therein damaged. Chief Justice Lowrie, before whom the cause was tried in the Court of Nisi Prius, at Philadelphia, without hearing any evidence for the defendants, entered a judgment of nonsuit and the judgment was affirmed by this court. The same learned judge before whom the
By thе ninth section of the Act of April 8th 1833, incorporating the borough of Erie, the burgess and councils of the said borough were, among other things, authorized and' empowered “ to make and estаblish a sufficient number of reservoirs to supply water in case of fire.” In pursuance of this authority, they did make and establish a number of reservoirs, among them the one in question, at the interseсtion of French and Fifth streets. This reservoir was allowed to fall into decay — was never repaired and became so leaky that it .was insufficient for the purpose for which it was cоnstructed. The plaintiff alleges that in consequence, a valuable block of buildings, which he оwned in the neighborhood, having taken fire was entirely consumed, there being no water in the reservoir to extinguish it. To what extent, if the water had been there, it might have succeeded in arresting thе fire, and preventing the entire damage which he suffered, is a matter of conjecture only, but it may be admitted that it would to some extent. But the same reason existed in. the case of thе insufficient culvert. To some extent it probably would have prevented the injury to the plaintiff if it hаd been sufficient. We do not say, because it is not necessary to say, whether if a duty had beеn imposed upon the municipality, and not a mere discretionary authority conferred uрon them, that their negligence in the premises would not have constituted a good causе of action. It may be doubted whether it would be a case to which the maxim Oausa próxima non remota speetatur has any apрlication. The purpose of the reservoir being to extinguish fires, and the fire having been shown not to have been extinguished in consequence of the non-performance of the duty imposed, it would' be no answer, perhaps, to say that the proximate cause of the injury wаs the fire, and the want of water only the remote cause. If it were made the duty of a municipality to station a police officer at a particular corner, to protеct the foot-passengers from being run over by passing vehicles, it may be doubted whether it would bе an answer to an action, to say that the cause of the injury was the horse and wagon аnd not the absence of the officer. But if the municipality were vested with the authority to employ and keep on foot a sufficient police, no
Judgment affirmed.