152 Pa. 30 | Pa. | 1892
Opinion by
This was an action of trespass brought to recover damages occasioned, as alleged by the plaintiff, by the negligent construction of a stone bridge over Elk creek by the defendant. The bridge was erected in 1866 by the borough authorities •.over Elk creek within the borough-limits. The plaintiff claims, and on the trial gave evidence to prove, that the whole width of the creek between the abutments, was twenty-two feet ten inches, and alleges that it might and should have been built, with one span only, so as to leave the water of the stream to flow freely and without obstruction. He also further alleges, and gave evidence to prove, that the bridge was built with two narrow spans about nine feet in width each, with a pier about three feet in width in the centre. This, the plaintiff claims, was a negligent construction of the bridge by the defendant which resulted in the water of the stream being backed up and obstructed so as to overflow his house and land immediately above the bridge in times of ordinary freshets, causing him damage and injury. The learned court below submitted the cause to the jury entirely on this issue, charging them as follows : “ Now in order that the plaintiff may recover against the' borough any damages, it is necessary for him to establish by the evidence in the case that the damages resulted from the acts and conduct of the defendant. In other words the evidence must show to the satisfaction of the jury that the overflowing of his land was caused by the improper erection of the pier in the centre of the bridge across Elk creek. ... If in the erection of the bridge there were sufficient space left' to pass an ordinary freshet the borough would not be liable to Krug, although his land might be overflowed. ... If you
The same idea was enforced by the court in answer to the points submitted on both sides, and hence the only question tried was whether the defendant had been guilty of negligence in the construction of the bridge, and in such a manner as to do injury to the plaintiff in the enjoyment of his land just above the bridge. No question was raised as to the right of the borough to build and to maintain the bridge at the point where it was erected, nor was there any contention on the part of the plaintiff as to the exclusive right of ‘the defendant to determine the character of the structure, its location, the materials of which it should be built, and all the details of the construction. No other question was raised, or submitted to the jury, except the question of negligence of the defendant in the exercise of its right of construction, and if there was such negligence, whether it resulted-in injury to the plaintiff. On the trial there was an abundance of testimony submitted by the plaintiff in support of his allegation of negligence. It was shown by a number of witnesses that, in times of moderate rises in the water of the stream, the passages left between the pier and the abutments were not sufficient to carry off the water, that whenever there was floating timber, logs, boards, barrels or any other débris in the stream, it would be caught by the centre pier and would obstruct the flow of the water so as to dam it up and raise it considerably higher above the bridge
The doctrine upon this subject is entirely free from difficulty, and is well expressed by Mr. Justice Agnew in delivering the opinion of this court in the case of Allentown v. Kramer, 73 Pa. 406. After referring to a number of cases which affirm the right of a municipality to raise its streets, or bridge them, -without liability for consequential injury, he proceeds as follows: “But the'cases referred to, or some of them, state the distinction upon which this case was submitted to the jury,.and which has been sustained in many other cases, to wit: that for negligence either in the construction or repair of public works (when repair is a duty) the corporation itself must respond in damages for a special injury caused by its negligence,” citing many cases. And again: “ The right of the city to raise the street and to construct the bridge as a necessary part of the improvement, does not appear to have been drawn into question. The faulty and negligent construction of the bridge making it an obstruction to the flow of the water in ordinary-rains, was a proper ground of’recovery.”
The law upon this subject is so perfectly familiar and so thoroughly well established that a repetition of the authorities is quite unnecessary. No question arose as to the statute of limitations or a prescriptive right to flood the plaintiff’s lands.
The assignments of error are not sustained.
Judgment affirmed.