74 Pa. Super. 532 | Pa. Super. Ct. | 1920
Opinion by
Plaintiff’s house is situate at the intersection of Main and Arch streets in the Borough of Mechanicsburg. A street car line turns the corner in front of plaintiff’s property and the surface water which gathered at the place was conveyed by a culvert under the railroad tracks to the other side of the street. This culvert had been put in by the trolley company in accordance to plans prepared by the company when the road was constructed. In 1910 the borough by ordinance provided for the paving of Main street with brick and in the con
The present action is in trespass, and plaintiff’s statement avers that the borough negligently constructed or allowed and permitted to be constructed on a portion of the streets at the intersection thereof a certain heap, mound and obstruction, and by means thereof divers large quantities of surface water and filth were and continued to be dammed back and diverted from its natural flow and deposited on the property of the plaintiff and over said premises. The gist of the action quoting from the appellee’s argument is, “the negligence of the borough in filling up the gutter which always had been maintained.” The uncontradicted testimony in the case was that it was necessary, following the method or plan that had been adopted by council, to take out the culvert in order to do the street paving. The street was paved with four-inch concrete on which a sand cushion of two inches was placed and over that block brick. Why the sand and brick were not put on the level the culvert occupied, does not appear, but the open space in its unfinished condition formed no part of the general scheme of improvement. Apparently there was no safe passage for vehicles over this gap that had been left and after complaint made, the authorities caused it to-be filled in, in order that there might be a continuous level surface. It was the duty of the borough to maintain the street in a reasonably safe condition for ordinary travel: Levine
The burden of proving negligence was upon the plaintiff and the mere fact that injury resulted after the improvement was completed raises no presumption of negligence. It may be admitted that the result shows that the improvement was not planned according to the best engineering skill, else there would not have been a collection of water at the corner of plaintiff’s property, but the adoption of a particular scheme of improvement was with the borough council and it cannot be held for lack of skill in not selecting the very best plan. It might be called upon to answer for negligence in the actual work of construction, or for failure to keep the work in repair after it is completed but not for lack of judgment in the selection of a plan: Ringwalt v. Atglen Borough, supra; Collins v. Phila., 93 Pa. 272. In Herwick v. Connellsville, Boro., 64 Pa. Superior Ct. 540, we held that the borough had the right, in the grading of a street, to make such changes in the system of drainage as it saw proper and there was no presumption of negligence arising from the mere fact that such change was made. When the borough undertook the improvement of the street by the paving of it, a statutory remedy was afforded to this plaintiff to have his damages assessed by viewers and as we said before this afforded an exclusive remedy.
Plaintiff’s recovery should have been sought in proceeding for the appointment of viewers and not in action of trespass.
Defendant’s motion for judgment non obstante should have prevailed. The judgment is reversed and is now entered for the defendant.