49 Pa. Super. 572 | Pa. Super. Ct. | 1912
Opinion by
The plaintiff alleged in her statement of claim that the defendant built and constructed its line of pipe in the street along her property in such negligent and careless manner that large quantities of poisonous gases were permitted to escape therefrom, which gases through the negligence of the defendant came in contact with the fibers and roots of a large and ornamental shade tree growing upon her premises, and by reason thereof the tree was killed; whereby she and her family were deprived of the comfort and enjoyment afforded by it and her property was injured in value in the sum of $500, for which she brought suit. That she could recover upon proof of the facts alleged is beyond question. The case of Langford v. People’s Light Co., 43 Pa. Superior Ct. 394, is authority for that proposition, if authority is needed. Nor does the fact that she was not a patron of the defendant affect that precise question. Whether the rule as to the burden of proof or as to the degree of care the defendant was bound to exercise would have been different if She had been a patron and one purpose of the pipe was to furnish gas to her premises, is a question upon which it is unnecessary to express an opinion. It is enough for the purpose of this case to say that it was not a fact essential to recovery by her. But as she was not a patron and there was no contract relation between her and the defendant, the latter owed her no duty differing in degree or kind from that which it owed to all other owners of property abutting on the street. Further, as the statement of claim alleged negligent construction, this fact was essential to recovery under the pleadings and was not to be inferred from the mere fact that the pipe leaked.
The judgment is affirmed.