Ladd v. Philadelphia, Appeal, No. 102

Appeal, No. 102 | Pa. | Oct 7, 1895

Opinion by

Mr. Chief Justice Sterrett,

The beneficial plaintiff, Mrs. Ladd, owns a three-story brick dwelling, erected in 1890 at No. 2243 North Nineteenth street, Philadelphia. Her house and the street in front thereof were on what is known as “ made ground,” filled in from time to time to the depth of about twenty feet. In 1893, under an ordinance authorizing the improvement, the city dug a trench, twenty-five or thirty feet deep, in Nineteenth street, in front of the house and within four or five feet of the eastern curb-line, and constructed therein a main public sewer about five feet in diameter. This sewer was not intended to drain plaintiff’s premises, which, for all sewage and drainage purposes, were connected with a local sewer on the westerly side of same street.

In view of the instructions under which the case was submitted to the jury, their verdict in favor of the plaintiff necessarily implies the finding of certain facts, among which are, that plaintiff’s house was well built on a sufficiently safe and solid foundation, and was in good condition when the construction of the sewer was commenced, but, during the progress of that improvement, the foundation wall of her house cracked, the front wall settled away from the side walls and became out of plumb, the back building partially separated from the front building and an opening or crack appeared at that point, extending from the foundation to the third story, the front pavement and steps thereon became detached from the front wall, the water pipes were displaced, and the house settled and leaned towards the street. Plaintiff, alleging that these and other injuries to her property were caused by the excavation, etc., in constructing said public sewer, brought this action to recover compensation for the damages thus sustained. An agreement of counsel was filed that the case should be considered as if arising on an appeal from the award of viewers under the act of March 16, 1891, or, on the election of the plaintiff, as an ordinary action of trespass.

The case was carefully and fairly submitted to the jury. The learned trial judge instructed them that, if plaintiff’s house was injured, “ not by the construction of the sewer, but by the faulty foundation—the foundation of made ground on which it was built—and that the injury was caused by the settling of the house upon its own foundation,” the plaintiff could not recover. In affirming defendant’s fourth point for charge, he also instructed them, in the language thereof, thus: “If the jury find that the ground where the house in question was erected was so deficient—from whatever cause—in firmness and solidity as to be inadequate to "sustain a building under the conditions which are usual in the conduct of necessary public works upon the highway, the}' must find for the defendant, so far at least as the injury to the house is concerned.” He further instructed the jurjT, in substance, that if they found the injuries to plaintiff’s house were caused by the excavation and construction of the sewer in front thereof, they should award damages to compensate her for the injury. Their verdict awarding damages to plaintiff necessarily implies that the jury found as a fact that the injuries complained of were the direct and proximate result of the excavation and construction of the sewer, and further, that they were not caused by the alleged insecure and defective character of the made ground on which her house was erected.

It having thus been clearly established by the verdict that the work of constructing the sewer and not the character of made ground on which the house was erected was the cause of the injury, the case is within the very letter as well as the spirit of the constitutional mandate which requires municipal and other corporations, etc., to “ make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements.” To hold otherwise would defeat one of the main objects of that provision.

In its controlling principles, this case does not materially differ from O’Brien v. Philadelphia, 150 Pa. 589" court="Pa." date_filed="1892-10-03" href="https://app.midpage.ai/document/obrien-v-phila-6240990?utm_source=webapp" opinion_id="6240990">150 Pa. 589; Mellor v. Philadelphia, 160 Pa. 614" court="Pa." date_filed="1894-04-02" href="https://app.midpage.ai/document/mellor-v-city-of-philadelphia-6242144?utm_source=webapp" opinion_id="6242144">160 Pa. 614, and other cases in the same line, and is virtually ruled by them.

Neither of the assignments of error is sustained.

Judgment affirmed.