Boehm v. Borough of Bethlehem , 4 Pa. Super. 385 ( 1897 )

Opinion by

Reeder, J.,

There is very little in the nineteen specifications of error which has not been carefully considered and fully discussed by the learned judge of the court below in his charge to the jury. In several of the assignments of error the defendant below and appellant here complains that the court did not correctly discuss and submit to the jury the law relating to an injury resulting from one of two proximate causes. The appellant correctly states the law to be that where an injury may have come from one of two causes either of which may have been the sole proximate cause it devolves upon the plaintiff to prove by a preponderance of testimony that the cause for which the defendant was liable was the culpable and proximate cause, citing Shaeffer v. Twp., 150 Pa. 145, 151; Borough v. Reinhart, 13 W. N. C. 389; 16 Am. & Eng. Ency. of Law, 445; Patterson on Railway Law, section 373. That is to say where there are two independent causes either of which could be the proximate cause of the injury the burden is on the plaintiff to show that the one for which the defendant is responsible was the one which caused the injury sought to be recovered for. But that law is not applicable to the facts in this case. The ’ plaintiff does not allege nor the evidence disclose two independent causes to either of which the damage might be ascribed but to two concurrent causes: One the permitting of obstructions to remain in the sewer; the other the subsequent flooding of the sewer. The obstructions could not have caused the injury without the flow of water; the flow of water might not have caused the injury were it not for the existence of the obstructions. Hence the law as stated by the appellant and the authorities cited in support of it are not applicable to the facts in this case. Therefore the court was correct in its denial of the defendant’s fourth point and its instruction to the jury in the general charge .that they must determine the plaintiff’s right to recover upon whether he had succeeded in convincing them that the damage had resulted from obstructions in the sewer of which the defendants had notice or the obstructions existed for such a length of time that the authorities -of the borough in the exercise of ordinary care and diligence in the examinations of their alleys and streets should have seen in which event they would be regarded as having had constructive notice. “ The omission to make an occasional examination is negligence. The city is presumed to have notice of a defect after a reasonable time for its ascertainment and removal: ” Vanderslice v. Phila., 103 Pa. 102. There was abundant evidence in this case to submit both the question as to the existence of the obstruction and the time of their existence to the jury.

• A large number' of witnesses testified to the fact that the obstructions were there, the length of time they were there and to their character: Henry Boehm says, “It was always bad, never attended to. There were stones and sticks and mud. I examined it often and I found those stones very much in the road and that of course had the effect to raise the water much higher than anywhere else.” Plenry Reese and Samuel Haines testify to the same effect. Oliver King testifies that he was employed by the borough to clean the sewer but only removed the dry sand, not the stones. The plaintiff’s witnesses declared that 'the stones never had been removed from the sewer. The boy who cleaned the sewer declared he picked the stones from the bottom of the sewer and piled them up in the sewer upon one side; other witnesses testify that the outlet of the Union street •sewer was partially obstructed by stones that were left there when the sewer was built and that they were never removed until after this suit was brought ^and that these stones and weeds prevented the free discharge of the water from the sewer. This testimony rendered submission of the question of defendant’s negligence to the jury imperative and it would have been palpable error not to have done so. The appellant complains that there was such evidence of contributory negligence as to make it error to submit the case • to the jury. This claim it seems' is based upon a misconception of the testimony. There is no evidence that any ashes or garbage were thrown into the sewer by the plaintiff or by the tenants of the plaintiff. Even though there was proof of such acts by his tenants it would not relieve the defendants from liability for their negligence. A landlord is not liable for any negligence of a tenant: Wunder v. McKean, 134 Pa. 334. But in this case there is absolutely no evidence of such negligence. Samuel Haines, the tenant, testified that “ He always prevented the throwing of garbage or rubbish in the sewer” by any member of his family. There was some evidence that in repairing the building Henry Boehm, the plaintiff, threw some slate in the sewer but that a day or two afterward he took it all out again. The appellant in his 15tb, 16th and 17th assignments of error complains of the court’s instructions to the jury upon the measure of damages. There was abundant evidence as to the amount of the pecuniary damage suffered by the plaintiff to warrant the submission of that question to the jury. . The defendant after describing the character of the injury to his lot estimates its depreciated value at $500 and that of the building also at $500. This in itself was enough to carry the case to the jury upon that point. The case was fairly submitted in a careful, deliberate well considered charge in which the attention of the jury was called to the law, correctly stated by the court below, as applicable to the facts in this case. All the assignments of error are dismissed, for the reasons stated by us in this opinion.

Judgment affirmed.