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Work Legal Record premises by reason of the obstruction

Pennsylvania

Sol. XXXI

No. 1

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gutter. The court entered a com

non suit and refused to take off th THURSDAY, MAY 17, 1917

Bruggeman et al. v. City of York, 2

LEGAL RECORD 19, and the Suprem COMMON PLEAS

affirmed the judgment; Bruggeman's 30 YORK LEGAL RECORD 18.

The third suit sought to recover Bruggeman et al. v. City of York. No. 3, for the loss of sight suffered by one

plaintiffs caused by some of the s Negligence--Liability of Municipality for water and filth in the gutter penetra Condition of Street.

eye. The jury having found for th

tiff, a motion for judgment n. 0. Plaintiff brought suit to recover damages for | made. A motion to have that motio loss of eyesight caused by filth from a gutter in a city street entering her eve, by reason of the by the court in banc, was refused; catching of a broom with which she was trying

man et al. v. City of York, No. 2, 3 to clean the gutter. The jury found for the plain- LEGAL RECORD 205. This motion fi tiff and defendant moved for judgment n. 0. v. ment n. 0. l'. was heard by the tria HELD, that the motion must be refused.

That the accumulation in the gutter, caused by Jno. L. Rouse for motion.
defendent's carelessness, was poisonous and pro-
ductive of disease and infection, and that plain- Niles Neff, contra.
tiff's eye was injured thereby, is not denied.

The salient elements of the cause of action was March 26th, 1917.
that the condition was created by the careless act suit was brought to recover alleged d

Ross, J. of the defendant and, although it was notified of that condition, it caselessly and negligently al- from the City of York for an injury lowed it to remain and made no effort to change to have been caused by the negligenc it or remedy its harmful effect.

said City of York. The jury having decided that the defendant

The plaintiff's evidence was to th was careless and negligent; that that carelessness and negligence resulted in the accumulation of a

that the plaintiffs lived at the co substance containing filth, poisonous and infectious Jessop Place and Rose Alley in the disease germs; that as a result, the plaintiff was

ant City.

The defendant caused injured by some of it which splashed into her left eye, the

motion for judgment for the defend erected a fire engine house opposite ant n. 0. v. must be overruled.

residence and in the course of the

raised the level of the lot upon w No. 125, August Term, 1914.

engine house was erected and in so Motion by defendant for judgment non caused water that formerly passed obstante veredicto.

surface to collect in front of pl

dwelling and remain there and collec The raising of the grade of a lot on which age water and filth of various kind defendant city was erecting a fire engine became stagnant. That the water a house, and the filling and bridging of a so collected contained various pois gutter for the purpose of more readily enter- germs and disease, contagion and in ing on the lot, resulted in three suits against which, if brought into contact with the city defendant.

or other unprotected parts of the The first was brought to recover damages body, would naturally, probably and to plaintiff's property by reason of the ob- produce such infection and disease structions and change of grade. This re-stroyed the sight of the plaintiff sulted in a verdict for the plaintiff. A Ellen Bruggeman, motion for judgment for defendant n. 0. v.

That the dangerous and obnox was refused by the court; sce Bruggeman v.

cumulations were made known to City of York, 29 YORK LEGAL RECORD 85; fendant by frequent notices given and the judgment entered on the verdict was representatives prior to the 21st of affirmed by the Superior Court; City of 1912. York's Appeal, 30 YORK LEGAL RECORD 53. That the said accumulation and co

The second suit was brough to recover was caused by the act of the munici damages for the death of plaintiffs' son, filling up a brick gutter which, be alleged to have been caused by the unsani-raising of the grade of the lot of th tary condition of the street and plaintiffs' house, had been constructed by t

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rtment Co.. 125

1.

for the purpose of carrying the water across for the defendant; those points were reJessop Place, from whence it fowed natur- fused.* The court submitted the facts to the ally on to lower ground.

jury and a verdict was rendered for the That the filling of this gutter was for the

plaintiffs. purpose of bridging the gutter and more

The motion for a new trial made by the readily hauling material on to the raised sur defendant, was formally withdrawn at the face of the engine house lot. That the time of the argument on the motion for obstruction or dam thus created, was negli-judgment for the defendant non obstante gently permitted by the City and no attempt

veredicto. was made to relieve the plaintiffs from the So that no specific errors of the court's baneful effect of the alleged nuisance, until rulings or charge to the jury were designated after the accident, for which this suit was or argued to the court, except the refusal to brought, happened.

give binding instructions for the jury to That on October 21st, 1912, at about

render a verdict in favor of the defendant, four o'clock in the afternoon the plaintiff,

The propositions, upon which the motion Mary Ellen Bruggeman, was engaged in for judgment non obstante veredicto is based, removing from the gutter in front of her as advanced by defendant's counsel at the dwelling, the said accumulation and in so argument, are as follows: doing, while using a broom, a wire which "1. The alleged negligence of the City was imbedded in the mud and filth which in permitting the highway to be and remain she was trying to remove, caught in the in an unsanitary condition, was not the broom and as a consequence some of the ac- proximate cause of Virs. Bruggeman's incumulated filth splashed in her face and into jury." her left eye; as a consequence the sight of the eye was so impaired that she is unable

* The points were as follows: to perform her household duties and other

The negligence alleged against the City of duties and necessary employments, as she had | York in the pleadings and in the testimony on bedone before the happening of the accident. i half of the plaintiff, is the maintenance of a stagEvidence of pain and suffering, doctor bills, the plaintiff's property. The natural and proba

nant pool of mud on the highway in front of &c., were testified to.

ble consequence of such negligence, even if proven, The defendant produced some witnesses Mary Ellen Bruggeman. one of the plaintiffs;

is not an injury to the eye such as happened to evidently for the purpose of discrediting the but such injury, if her testimony be believed, was testimony of the plaintiff, Mary Ellen the result of the entanglement of a wire spring in Bruggeman, as to the cause of the injury to a broom with which she was attempting to clean her left eye, and to discredit the plaintiff's of this wire and the disentangling of the same evidence as to the liability of the City of from the broom, could not have been reasonably York; but much of the testimony given in foreseen by the defendant and, therefore, the versupport of plaintiffs' allegations as submitted dict must be for the defendant. to the court in their statement filed, was not Answer-For the present this point as written

is refused. directly contradicted by defendant's witnesses. The theory upon which the defense

2. If the jury believe that the accident was seemed to be based was that the defendant caused in the manner described by Mary Ellen being a municipality was not liable for Bruggeman, the plaintiff, she has no right of acdamages for personal injury in the main- I said City is not liable for injuries to the person of

tion therefor against the City of York, because tenance of its highways and that the plain the plaintiff caused by its neglect of sanitary pretiff's evidence showed that the catching of cautions on the highways. the wire in plaintiff's broom caused the AnswerPoint refused. splash which caused the injury, therefore the

3. The evidence of the plaintiff's physicians is alleged negligence of the City was not the uncertain and inconclusive that the germs which proximate, but the remote cause of the ac- caused the injury to the plaintiff's eve came from cident.

the mud which splashed into her eye in the man

ner described by said plaintiff and, therefore, the At the close of the plaintiff's evidence the verdict should be for the defendant. defendant moved for compulsory non-suit, Answer-Point refused. which motion was overruled; and, at the

4. Under all the evidence the verdict of the close of all the testimony the defendant pre-jury should be for the defendant. sented points asking for binding instructions AnswerPoint refused.

-ints were re the facts to the dered for the

I made by the drawn at the ne motion for

11on obstante

of the court's sere designated - the refusal to er the jury to he defendant. ich the motion edito is based, counsel at the

not

nce of the City be and remain

was not the Inggeman's in

gainst the City of

testimony on be enance of a stagwar in front of tural and proba ce, even if proven, h as happened to of the plaintifis; be believed, was

a wire spring in tempting to clean 's. The existence ling of the same

been reasonably ierefore, the ver

"2. There is no liability on the City for the raised grade of the lot and injuries resulting to health or life of occu- that obstruction to remain, were no pants of abutting property by reason of un- ally excepted to, and we take it fo; sanitary condition of the abutting highway." that the defendant was satisfied w

We will first consider the second pro- The verdict of the jury convicts th position.

ant of carelessness. That the accu The success of the plaintiff's case could caused by that carelessness, was p not depend alone upon the mere condition of and harmful and productive of suc the abutting highway, but the salient ele- and infection, as the plaintiffs cla ments of the cause of action was that the injury to Mrs. Bruggeman's eye w condition was created by the carless act of by, was not denied by defendant's the defendant and, although it was notified and if it was denied, the jury decid of that condition, it carelessly and negli- affirmative; that a portion of that gently allowed it to remain and made no lation went into the eye of lrs. Br effort to change it or remedy its harmful and destroyed its sight, was effect.

denied by the defendant's evidence The plaintiff's evidence was obviously was denied, the jury decided in fave intended to prove not only the condition of plaintiffs' claim. the highway but all other elements of the An analysis of the verdict, after cause of action. All of the evidence was study of the evidence submitted, r submitted to the jury, and the court repeat- the conclusion that the jury decided edly instructed in the charge, that, “it is defendant was careless and neglige incumbent on the plaintiff, to show, by the that carelessness and negligence re weight and preponderance of all the evi- the accumulation of a substance co dence, before they could recover; first, that filth, poisonous and infectious diseas the negligence complained of was the actual that as a result, when the plainti negligence of the defendant; secondly, that Mary Ellen Bruggeman, attempte because of that negligence the damage com- move it from the premises of her d plained of was incurred," and, “unless, by a she was injured by some of it which preponderance or weight of the evidence, into her left eye. the plaintiffs will have convinced you of It will be observed that the det those two things, theset wo elements, it will contributory negligence has not be not be necessary for you to go further but posed in this case, either by the p find a verdict for defendant.”

or at any stage of the trial; and w The jury found in favor of the plaintiffs. for granted from our interpretation

It has been decided that, “A verdict and expressions of defendant's counsel judgment for plaintiff will be sustained argument, that no such defence is d where the evidence shows that the City on. diverted water from its own lot and un- The other question raised by the necessarily dammed up the natural course of ant's motion for judgment, notwith the flow of water in the alley, and cast the the verdict, is that raised by the def water upon the plaintiff's property; Brugge- counsel at the argument in the fisr man v. City of York, 63 Pa. Sup. Ct. 542. assigned in support of the motion

"Municipal corporations are liable for the the injury the direct or proximate improper management and use of their prop- the defendant's negligence, or erty to the same extent and in the same such an independent and intervening manner as private corporations and natural over which the defendant had no Persons;" Powers v. The City of Philadel- which caused the accident to happe phia, 18 Pa. Super. Ct. 621; Morgan v. rendered the carelessness of the de Duquesne Boro., 29 Pa. Sup. Ct. 103; the remote and not the proximate ca Briegel v. Philadelphia, 135 Pa. 451.

The rule is, "that in order to rec The instructions as to the method of injuries alleged to have been ca finding, from the evidence, whether or not negligence, the injury must be the the City was negligent or careless in the and probable consequence of the n erection of its engine house, the raising of act;" Rhad v. Duquesne Light the level of the lot upon which it was Pa. 409. erected, the bridging or filling of the gutter The argument advanced by defe for the purpose of more readily reaching counsel in his brief and by oral ar

point as written

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he accident was 1 by Mary Ellen s no right of acof York, because s to the person of of sanitary pre

Af's physicians is the germs which 3 eve came from

eve in the man id, therefore, the DI.

de verdict of the

was founded upon an excerpt from the testi- excepted to the charge, and, as we undermony of Mrs. Bruggeman, found on pages stand, does not now complain of any in5 and 7 of the stenographer's transcript, adequacy of the charge in that respect. In which is as follows:

effect, the verdict decided that the negli“Q. Now, what did you do before Oc- gence was the direct and proximate cause of tober 21st to clean up that condition ? A. the injury. The counsel argue that as the Well, I used to take a rake and try to get facts were undenied, it was the duty of the the thickest part out on piles on the street, court to decide that the catching of the wire and I thought the City carts would take it in the broom of the plaintiff, Mrs. Bruggealong, and I tried with a broom to get the man, resulted in the splashing of the subother thicker part by, thinking the water stance into her eye, and was the proximate would find a way, some way to get out. cause of the injury.

"O. What did you do on the 21st of The only evidence as to the happening of October, 1912? A. On the 21st of Octo- the accident was the testimony of Mrs. ber, 1912, I taken my rake and I had raked Brugueman that, “On the 21st of October, all of the heaviest dirt and filth out, and I 1912, I taken my rake and I had raked all then had taken the broom and tried to push of the heaviest dirt and filth out, and I then the rest of the mud and things out so that it had taken the broom and tried to push the would drain, and in doing so my broom came rest of the mud and things out so that it in contact with something in the mud and would drain, and in doing so my broom splashed the filth in my eye and over my came in contact with something in the mud face."

and splashed the filth in my eye and over Q. Now, your broom struck a wire. A. my face." It struck a wire in the mud, yes sir.

When defendant's motion for compulsory Q. And this wire became fastened in non-suit was made, the trial judge was not the broom? A. Yes, sir.

clearly informed by the evidence that the wire Q. In some way or other, and you dis- imbedded in the mud was not such a thing as covered that in one of the movements of the might have been foreseen. It had been tesbroom, A. After I pushed it on the em- tified that little chickens and tin cans had bankment; after I pushed the mud and stuff been washed to the same place, and were out of the way.

held there by the alleged obstruction which Q. What kind of a wire was this? A. was attributed to the defendant's negliIt appeared to be a wire out of a broom, or gence; there was no description of the wire a blind screen; just a thin twisted wire.

except that which was given by the evidence Q. Did it seem to spring? A. It of Mrs. Bruggeman; and it was not made seemed that way because it struck right clear whether or not it was concealed in the back.

mud or whether it was in such a conspicuQ. This wire was fastened in the dirt? |ous position as might have rendered it so A. No, in the mud.

obvious to Mrs. Bruggeman that she could Q. The one end was caught in the mud have prevented the accident by using proper in the bricks? A. It had

some hold

For these reasons the motion was some way in the mud because one end held overruled. The defendant's evidence did on to the broom.

nothing to enlighten the court on those Q. And you were trying to get this wire matters, nor did it show how the wire was loose when it flew back into the mud? A. placed in the mud, so the question of proximI do not think I had a chance to go that far. ate cause was left to the jury to decide.

Q. You made no motion to unloosen it . Whenever there is a conflict of testimony at all? A. I did not make any motion be- or for any cause there is a reasonable doubt cause I would not stoop over the filth in the as to the facts, or as to the inference to be gutter.

drawn from them, negligence is always a Q. Where were you standing? A. On question for the jury:" Graham v. Phila., the curb.

19 Pa. Sup. Ct. 292. Q. And this mud was in the cement “Whoever does a wrongful act is answergutter? A. Yes, sir, in the cement gutter. able for all the consequences that may ensue

The trial judge left that evidence, to- in the ordinary and natural course of events gether with all other evidence in the case though such consequences be immediately for the jury to determine the proximate brought about by intervening causes, if such Cause. The defendant has not specifically intervening causes were set in motion by the

or

care.

*

Vol. XXXI

THURSDAY, MAY 24, 1917

No. 2

as we underin of any inat respect. In hat the negli imate cause of gue that as the he duty of the ing of the wire

Mrs. Brugge ng of the subthe proximate

e happening of nony of Mrs. st of October I had raked all out, and I then ried to push the

out so that it 50 my broom ing in the mud y eye and over

t

for compulsory

judge was not ce that the wire

such a thing as It had been tes. d tin cans had ace, and were struction which endant's negli ion of the wire by the evidence

Dork Legal iRecord of March 19, 1903, Stewart's Pur

4. page 4663, pl. 265, which is act
of religious worship
tions of purely public charity sha

subject to tax or municipal clain
original wrongdoer:" Cameron v. Citizens for the removal of nuisances, f
Traction Co., 215 Pa. 191; Laughlin v. claims and sewer connections, or f
Penna. R. R. Co., 240 Pa. 178; Siever v. curbing, paving, repaving or repa
Pittsburg, Cincinnati, Chicago and St. Louis footways in front thereof.” It a
Railway Co., 252 Pa. 10; Central D. & P.; the affidavits of defence that the
T. Co. v. Otis El. Co., 54 Pa. Sup. Ct. 654, sought to be charged is on the opp
(opinion by President Judge Rice, in which of a street from the church buildi
he quotes from McGrew v. Stone, 53 Pa. annexed thereto, presumably the
436).

each side extend to the middle of t We are of the opinion that the question That the church building is not on) of proximate cause was properly decided by a place of religious worship, but is the jury under the evidence of this case. as a place of instruction to the you

As there are no specifications of error of licly, freely and indiscriminately, admission or rejection of evidence at the say a public charity. That the g trial, and no specific objection or exception question is used as a play-ground to the charge of the court, there is nothing school children, who are taught else to dispose of in the present inquiry. church, and is necessary for such us

And now, motion for judgment non the legal title of the ground and obstante veredicto, is refused.

in the head of the church for the u members, who maintain the scho

which no profit is derived. The C. P. of

Delaware Co.

question is whether this school, Chester City v. Prendergast. play-ground, which is averred to be Municipel Lien-Charitable Institution-fact that the school is conducted i

sary adjunct, is a purely public charit Parochial Play-ground-- Acts of 4 June, of the church building rather tend 1901, P. L. 364, and of 19 March, 1903, to its immunity than to detract fror

charity was defined by Mr. Binne A playground, connected with a parochial Girard Will case, and since recog school which dispenses education to the public legal writers, to be whatever is giver freely and without discrimination, is an institution love of God, or for the love of you of purely public charity, within the Acts of + bor, in the Catholic and universa June, 1901, P. L. 364, and 19 March, 1903, P. L. 42, and is not subject to tax or municipal claims." given from those motives, and to the

free from the stain or taint of every Rule for judgment for want of a suffi

eration that is personal, private o cient affidavit of defense.

Free dispensations of education are A. A. Cochran, City Solicitor, for rule. as in the Girard bequest, quite as J. E. McDonough, contra,

other dispensations for the good of

If this particular charity should November 27, 1916. BROOMALL, J.- permanent and perpetual, the exemp This is a scire facias sur municipal lien. cease when the charity ceases. The lien was filed on February 19, 1914, In White v. Smith, 189 Pa. 22 against Patrick J. Ryan, for the paving of conceded that a parochial school wa the roadway of Fourth Street, opposite a lot from general taxation as a charitabl of land at the Southeast corner of Fourth tion of learning under the Act of and Hayes Streets, in the Eleventh Ward 1874, P. L. 158, and that the nece of the City of Chester. The question pre- junct of a convent building used for sented is whether the land sought to be the teachers who taught in the su charged is exempt by the Act of June t, also exempt.

It seems to us that 1901, P. L. 304, Section 5, which is re- itable parochial school considered enacted and extended to townships of the stitution of learning is exempt fron first class by the Act Tarch 19, 1903, P. taxation under the Act of 1874, su L. 42, and appears in the Digest as the Act is also exempt from municipal dla

P. L. 42.

was not made concealed in the uch a conspicu rendered it so

that she could by using proper he motion was s evidence did court on those w the wire was stion of proxim

to decide. lict of testimony casonable doubt

inference to be nce is always a raham v. Phila.,

ul act is answer

that may ensue course of events be immediately

3 causes, if such

o motion by the

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