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Work Legal Record

Vol. XXXI

THURSDAY, MAY 17, 1917

COMMON PLEAS

No. 1

Bruggeman et al. v. City of York. No. 3

Negligence-Liability of Municipality for
Condition of Street.

Plaintiff brought suit to recover damages for loss of eyesight caused by filth from a gutter in a city street entering her eve, by reason of the catching of a broom with which she was trying to clean the gutter. The jury found for the plaintiff and defendant moved for judgment . o. v. HELD, that the motion must be refused.

That the accumulation in the gutter, caused by defendent's carelessness, was poisonous and productive of disease and infection, and that plaintiff's eye was injured thereby, is not denied.

The salient elements of the cause of action was that the condition was created by the careless act of the defendant and, although it was notified of that condition, it carelessly and negligently allowed it to remain and made no effort to change it or remedy its harmful effect.

The jury having decided that the defendant was careless and negligent; that that carelessness and negligence resulted in the accumulation of a substance containing filth, poisonous and infectious disease germs; that as a result, the plaintiff was injured by some of it which splashed into her left eye, the motion for judgment for the defendant n. o. v. must be overruled.

No. 125, August Term, 1914.

I

premises by reason of the obstructions in the gutter. The court entered a compulsory non suit and refused to take off the same; Bruggeman et al. v. City of York, 29 YORK LEGAL RECORD 19, and the Supreme Court affirmed the judgment; Bruggeman's Appeal, 30 YORK LEGAL RECORD 48.

for the loss of sight suffered by one of the
The third suit sought to recover damages
water and filth in the gutter penetrating her
plaintiffs caused by some of the stagnant
eye. The jury having found for the plain-
made. A motion to have that motion heard
tiff, a motion for judgment n. o. v., was
by the court in banc, was refused; Brugge-
man et al. v. City of York, No. 2, 30 YORK
LEGAL RECORD 205. This motion for judg
ment n. o. v. was heard by the trial judge.
Jno. L. Rouse for motion.
Niles Neff, contra.

suit was brought to recover alleged damages
March 26th, 1917.
Ross, J.-This
from the City of York for an injury alleged
to have been caused by the negligence of the
said City of York.

The plaintiff's evidence was to the effect that the plaintiffs lived at the corner of Jessop Place and Rose Alley in the defendant City.

erected a fire engine house opposite the said The defendant caused to be residence and in the course of the work raised the level of the lot upon which the engine house was erected and in so doing

Motion by defendant for judgment non caused water that formerly passed over its

obstante veredicto.

The raising of the grade of a lot on which defendant city was erecting a fire engine house, and the filling and bridging of a gutter for the purpose of more readily entering on the lot, resulted in three suits against the city defendant.

The first was brought to recover damages to plaintiff's property by reason of the obstructions and change of grade. This resulted in a verdict for the plaintiff. A motion for judgment for defendant n. o. v. was refused by the court; see Bruggeman v. City of York, 29 YORK LEGAL RECORD 85; and the judgment entered on the verdict was affirmed by the Superior Court; City of York's Appeal, 30 YORK LEGAL RECORD 53. The second suit was brough to recover damages for the death of plaintiffs' son, alleged to have been caused by the unsanitary condition of the street and plaintiffs'

surface to collect in front of plaintiff's dwelling and remain there and collect drainage water and filth of various kinds which became stagnant. That the water and filth so collected contained various poisons and germs and disease, contagion and infection, which, if brought into contact with the eye or other unprotected parts of the human body, would naturally, probably and usually produce such infection and disease as destroyed the sight of the plaintiff, Mary Ellen Bruggeman.

That the dangerous and obnoxious accumulations were made known to the defendant by frequent notices given to its representatives prior to the 21st of October, 1912.

That the said accumulation and condition was caused by the act of the municipality in filling up a brick gutter which, before the raising of the grade of the lot of the engine house, had been constructed by the City,

for the purpose of carrying the water across for the defendant; those points were reJessop Place, from whence it flowed natur- fused.* The court submitted the facts to the ally on to lower ground. jury and a verdict was rendered for the plaintiffs.

That the filling of this gutter was for the 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 render a verdict in favor of the defendant.

The propositions, upon which the motion. for judgment non obstante veredicto is based, as advanced by defendant's counsel at the argument, are as follows:

That on October 21st, 1912, at about four o'clock in the afternoon the plaintiff, Mary Ellen Bruggeman, was engaged in removing from the gutter in front of her dwelling, the said accumulation and in so 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 Mrs. 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 to perform her household duties and other duties and necessary employments, as she had done before the happening of the accident. Evidence of pain and suffering, doctor bills, &c., were testified to.

*The points were as follows:

I. The negligence alleged against the City of York in the pleadings and in the testimony on behalf of the plaintiff, is the maintenance of a stagthe plaintiff's property. The natural and probanant pool of mud on the highway in front of

ble consequence of such negligence, even if proven, is not an injury to the eye such as happened to Mary Ellen Bruggeman. one of the plaintiffs; but such injury, if her testimony be believed, was the result of the entanglement of a wire spring in a broom with which she was attempting to clean of this wire and the disentangling of the same the gutter in front of her premises. The existence from the broom, could not have been reasonably foreseen by the defendant and, therefore, the verdict must be for the defendant.

Answer-For the present this point as written is refused.

The defendant produced some witnesses evidently for the purpose of discrediting the testimony of the plaintiff, Mary Ellen Bruggeman, as to the cause of the injury to her left eye, and to discredit the plaintiff's evidence as to the liability of the City of York; but much of the testimony given in support of plaintiffs' allegations as submitted to the court in their statement filed, was not 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-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 splash which caused the injury, therefore the alleged negligence of the City was not the proximate, but the remote cause of the accident.

At the close of the plaintiff's evidence the defendant moved for compulsory non-suit, which motion was overruled; and, at the

Answer-Point refused.

3. The evidence of the plaintiff's physicians is uncertain and inconclusive that the germs which caused the injury to the plaintiff's eve came from the mud which splashed into her eye in the manner described by said plaintiff and, therefore, the verdict should be for the defendant. Answer-Point refused.

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 Answer-Point refused.

"2. There is no liability on the City for injuries resulting to health or life of occupants of abutting property by reason of unsanitary condition of the abutting highway." We will first consider the second proposition.

The success of the plaintiff's case could not depend alone upon the mere condition of the abutting highway, but the salient elements of the cause of action was that the condition was created by the carless act of the defendant and, although it was notified of that condition, it carelessly and negli gently allowed it to remain and made no effort to change it or remedy its harmful effect.

The plaintiff's evidence was obviously intended to prove not only the condition of the highway but all other elements of the cause of action. All of the evidence was submitted to the jury, and the court repeatedly instructed in the charge, that, "it is incumbent on the plaintiff, to show, by the weight and preponderance of all the evidence, before they could recover; first, that the negligence complained of was the actual negligence of the defendant; secondly, that because of that negligence the damage complained of was incurred," and, "unless, by a preponderance or weight of the evidence, the plaintiffs will have convinced you of those two things, thesetwo elements, it will not be necessary for you to go further but find a verdict for defendant."

The jury found in favor of the plaintiffs. It has been decided that, "A verdict and judgment for plaintiff will be sustained where the evidence shows that the City diverted water from its own lot and unnecessarily dammed up the natural course of the flow of water in the alley, and cast the water upon the plaintiff's property; Bruggeman v. City of York, 63 Pa. Sup. Ct. 542. "Municipal corporations are liable for the improper management and use of their property to the same extent and in the same manner as private corporations and natural persons;" Powers v. The City of Philadelphia, 18 Pa. Super. Ct. 621; Morgan v. Duquesne Boro., 29 Pa. Sup. Ct. 103; Briegel v. Philadelphia, 135 Pa. 451.

the raised grade of the lot and allowing that obstruction to remain, were not specifically excepted to, and we take it for granted that the defendant was satisfied with them. The verdict of the jury convicts the defendant of carelessness. That the accumulation caused by that carelessness, was poisonous and harmful and productive of such disease and infection, as the plaintiffs claimed the injury to Mrs. Bruggeman's eye was caused by, was not denied by defendant's evidence, and if it was denied, the jury decided in the affirmative; that a portion of that accumulation went into the eye of Mrs. Bruggeman and destroyed its sight, was not directly. denied by the defendant's evidence and if it was denied, the jury decided in favor of the plaintiffs' claim.

An analysis of the verdict, after a close study of the evidence submitted, results in the conclusion that the jury decided that the defendant was careless and negligent; that that carelessness and negligence resulted in the accumulation of a substance containing filth, poisonous and infectious disease germs; that as a result, when the plaintiff, Mrs. Mary Ellen Bruggeman, attempted to remove it from the premises of her dwelling, she was injured by some of it which splashed into her left eye.

It will be observed that the defence of contributory negligence has not been interposed in this case, either by the pleadings, or at any stage of the trial; and we take it for granted from our interpretation of the expressions of defendant's counsel, at the argument, that no such defence is depended on.

The other question raised by the defendant's motion for judgment, notwithstanding the verdict, is that raised by the defendant's counsel at the argument in the fisrt reason assigned in support of the motion. Was the injury the direct or proximate result of the defendant's negligence, or was there such an independent and intervening agency, over which the defendant had no control, which caused the accident to happen which rendered the carelessness of the defendant the remote and not the proximate cause.

The rule is, "that in order to recover for injuries alleged to have been caused by negligence, the injury must be the natural and probable consequence of the negligent act;" Rhad v. Duquesne Light Co., 255 Pa. 409.

The instructions as to the method of finding, from the evidence, whether or not the City was negligent or careless in the erection of its engine house, the raising of the level of the lot upon which it was erected, the bridging or filling of the gutter The argument advanced by defendant's for the purpose of more readily reaching counsel in his brief and by oral argument

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.

"Q. What did you do on the 21st of October, 1912? A. On the 21st of October, 1912, I taken my rake and I had raked all of the heaviest dirt and filth out, and I then had taken the broom and tried to push the rest of the mud and things out so that it would drain, and in doing so my broom came in contact with something in the mud and splashed the filth in my eye and over my face."

Q. Now, your broom struck a wire. It struck a wire in the mud, yes sir.

A.

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

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.

Q. In some way or other, and you discovered that in one of the movements of the broom; A. After I pushed it on the embankment; after I pushed the mud and stuff out of the way.

Q. What kind of a wire was this? A. It appeared to be a wire out of a broom, or a blind screen; just a thin twisted wire.

Q. Did it seem to spring? A. It seemed that way because it struck right back.

Q. This wire was fastened in the dirt? A. No, in the mud.

Q. The one end was caught in the mud or in the bricks? A. It had some hold some way in the mud because one end held on to the broom.

Q. And you were trying to get this wire loose when it flew back into the mud? A. I do not think I had a chance to go that far. Q. You made no motion to unloosen it at all? A. I did not make any motion because I would not stoop over the filth in the gutter.

Q. Where were you standing? A. On the curb.

Q. And this mud was in the cement gutter? A. Yes, sir, in the cement gutter. The trial judge left that evidence, together with all other evidence in the case for the jury to determine the proximate The defendant has not specifically

'cause.

clearly informed by the evidence that the wire imbedded in the mud was not such a thing as might have been foreseen. It had been testified that little chickens and tin cans had been washed to the same place, and were held there by the alleged obstruction which. was attributed to the defendant's negligence; there was no description of the wire except that which was given by the evidence of Mrs. Bruggeman; and it was not made clear whether or not it was concealed in the mud or whether it was in such a conspicuous position as might have rendered it so obvious to Mrs. Bruggeman that she could have prevented the accident by using proper care. For these reasons the motion was overruled. The defendant's evidence did nothing to enlighten the court on those matters, nor did it show how the wire was placed in the mud, so the question of proximate cause was left to the jury to decide.

"Whenever there is a conflict of testimony or for any cause there is a reasonable doubt as to the facts, or as to the inference to be drawn from them, negligence is always a question for the jury:" Graham v. Phila., 19 Pa. Sup. Ct. 292.

"Whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary and natural course of events though such consequences be immediately brought about by intervening causes, if such intervening causes were set in motion by the

Dork Legal Record of March 19, 1903, Stewart's Purdon, Vol.

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No. 2

original wrongdoer:" Cameron v. Citizens Traction Co., 215 Pa. 191; Laughlin v. Penna. R. R. Co., 240 Pa. 178; Siever v. Pittsburg, Cincinnati, Chicago and St. Louis Railway Co., 252 Pa. 10; Central D. & P. T. Co. v. Otis El. Co., 54 Pa. Sup. Ct. 654, (opinion by President Judge Rice, in which he quotes from McGrew v. Stone, 53 Pa. 436).

We are of the opinion that the question of proximate cause was properly decided by the jury under the evidence of this case.

As there are no specifications of crror of admission or rejection of evidence at the trial, and no specific objection or exception to the charge of the court, there is nothing else to dispose of in the present inquiry. And now, motion for judgment non obstante veredicto, is refused.

C. P. of

4. page 4663, pl. 265, which is "actual places of religious worship

*

and institutions of purely public charity shall not be subject to tax or municipal claims, except for the removal of nuisances, for sewer claims and sewer connections, or for the recurbing, paving, repaving or repairing the footways in front thereof." It appears by the affidavits of defence that the ground sought to be charged is on the opposite side of a street from the church building, but is annexed thereto, presumably the titles on each side extend to the middle of the street. That the church building is not only used as a place of religious worship, but is also used as a place of instruction to the young, publicly, freely and indiscriminately, that is to say a public charity. That the ground in question is used as a play-ground for the school children, who are taught in the church, and is necessary for such use. That the legal title of the ground and church is in the head of the church for the use of its members, who maintain the school, from which no profit is derived. The concrete question is whether this school, with the play-ground, which is averred to be a necessary adjunct, is a purely public charity. The fact that the school is conducted in a part of the church building rather tends to add to its immunity than to detract from it. A charity was defined by Mr. Binney in the Girard Will case, and since recognized by legal writers, to be whatever is given for the love of God, or for the love of your neighbor, in the Catholic and universal sense; given from those motives, and to those ends, eration that is personal, private or selfish. free from the stain or taint of every considFree dispensations of education are charities, as in the Girard bequest, quite as much as other dispensations for the good of mankind. If this particular charity should not be J.-permanent and perpetual, the exemption will cease when the charity ceases.

Delaware Co.

Chester City v. Prendergast. Municipel Lien--Charitable InstitutionParochial Play-ground-Acts of 4 June, 1901, P. L. 364, and of 19 March, 1903, P. L. 42.

A playground, connected with a parochial school which dispenses education to the public freely and without discrimination, is an institution of purely public charity, within the Acts of 4 June, 1901, P. L. 364, and 19 March, 1903, P. L. 42, and is not subject to tax or municipal claims. Rule for judgment for want of a suffi

cient affidavit of defense.

A. A. Cochran, City Solicitor, for rule. J. E. McDonough, contra, November 27, 1916. BROOMALL, This is a scire facias sur municipal lien. The lien was filed on February 19, 1914, In White v. Smith, 189 Pa. 222, it was against Patrick J. Ryan, for the paving of conceded that a parochial school was exempt the roadway of Fourth Street, opposite a lot from general taxation as a charitable institaof land at the Southeast corner of Fourth tion of learning under the Act of May 14, and Hayes Streets, in the Eleventh Ward 1874, P. L. 158, and that the necessary adof the City of Chester. The question pre-junct of a convent building used for housing sented is whether the land sought to be the teachers who taught in the school was charged is exempt by the Act of June 4, also exempt. It seems to us that if a char1901, P. L. 304, Section 5, which is re-itable parochial school considered as an inenacted and extended to townships of the stitution of learning is exempt from general first class by the Act of March 19, 1903, P. taxation under the Act of 1874, such school L. 42, and appears in the Digest as the Act is also exempt from municipal claims as a

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